On June 18, 2018, the Supreme Court decided Gill v. Whitford, a case considering claims of partisan gerrymandering.
In Wisconsin’s 2010 elections, Republicans won the governorship and acquired control of the state senate. In 2011, pursuant to the state constitution’s requirement that the legislature must redraw the boundaries of its districts following each census, the Wisconsin legislature adopted a redistricting plan, Act 43, for state legislative districts. With Act 43 in effect Republicans expanded their legislative control in subsequent elections, reportedly winning 60 of 99 seats in the State Assembly with 48.6% of the statewide two-party vote in 2012, and 63 of 99 seats with 52% of the statewide two-party vote in 2014. In 2015 twelve Wisconsin voters sued in federal court, alleging that Act 43 constituted a statewide partisan gerrymander in violation of the First and Fourteenth Amendments to the U.S. Constitution. Defendants’ motions to dismiss and for summary judgment were denied, and following trial a divided three-judge district court panel invalidated Act 43 statewide. Act 43, the majority concluded, impermissibly burdened the representational rights of Democratic voters by impeding their ability to translate their votes into legislative seats even when Republicans were in an electoral minority. The court enjoined further use of Act 43 and ordered that a remedial redistricting plan be enacted, but the United States Supreme Court stayed that judgment pending resolution of this appeal.
By a vote of 9-0, the U.S. Supreme Court vacated the judgment of the district court and remanded the case for a new trial. In an opinion delivered by Chief Justice Roberts, the Court held that the plaintiffs--Wisconsin Democratic voters who rested their claim of unconstitutional partisan gerrymandering on statewide injury--had failed to demonstrate Article III standing.
Chief Justice Roberts delivered the opinion of the court, in which Justices Kennedy, Ginsburg, Breyer, Alito, Sotomayor, and Kagan joined. Justices Thomas and Gorsuch joined except as to Part III. Justice Kagan filed a concurring opinion in which Justices Ginsburg, Breyer, and Sotomayor joined. Justice Thomas filed an opinion concurring in part and concurring in the judgment, which was joined by Justice Gorsuch.
To discuss the case, we have David Casazza, Associate at Gibson Dunn.
Opening Arguments - OA192: Capital Punishment, the Eighth Amendment &… Obergefell?
Today's episode takes an in-depth historical look at the Eighth Amendment's prohibition on "cruel and unusual punishment" and what that might mean for the future of Obergefell v. Hodges in the next Supreme Court. What does capital punishment have to do with gay marriage? Listen and find out! We begin, however, with a discussion of the District Court's refusal to modify the Flores settlement we discussed in Episode 184. Find out what the court thinks of Trump's Executive Order to "keep families together" at the border... by indefinitely detaining minors in violation of the law. After that, it's time for a double-length dive into the history of Eighth Amendment jurisprudence, and in particular, the Supreme Court's decision outlawing capital punishment in 1972 (Furman v. Georgia) and then reversing itself just four years later (Gregg v. Georgia). Is this a blueprint for what the next SCOTUS will do? Listen and find out! Finally, we end the answer to Thomas Takes The Bar Exam #84 regarding spousal privilege. Remember to follow our Twitter feed (@Openargs) and like our Facebook Page so that you too can play along with #TTTBE! Recent Appearances By the time you download this, Andrew will have been a guest discussing Judge Kavanaugh with conservative talk show host Chuck Morse. If you'd like to have either of us as a guest on your show, drop us an email at openarguments@gmail.com. Show Notes & Links
- We first discussed the President's Executive Order regarding family separation in Episode 184; and you can click hear to read the District Court's Order refusing to modify the Flores settlement.
- The first case we discussed was Pavan v. Smith, 137 S.Ct. 2075 (2017), in which Roberts refused to sign on with the hard-right dissent.
- Our two main cases we broke down were Furman v. Georgia, 408 U.S. 238 (1972) and Gregg v. Georgia, 482 U.S. 153 (1976).
- Finally, we strongly recommend reading Justice Brennan's 1986 Oliver Wendell Holmes lecture in which he explains his view of the Eighth Amendment.
Opening Arguments - OA191: Fact and Fiction About Brett Kavanaugh
Today's Rapid Response Friday does not take a victory lap about our successful prediction that Brett Kavanaugh would be Donald Trump's next nominee to the Supreme Court (but seriously, we called that right, y'all.) Instead, Andrew and Thomas break down some of the current stories surrounding Kavanaugh to separate fact from fiction and try and articulate the best mainstream case against confirming Kavanaugh to the Supreme Court. In the pre-show, we give a shout-out to everyone who made the Opening Arguments Wiki possible -- go check it out! It's amazing! After that, Andrew Was Wrong returns with a clarification from Episode 187 where Andrew misspoke. And also, the guys have a slight laugh at Andrew's inability to pronounce locations of things. The main segment tackles a bunch of current stories surrounding Judge Kavanaugh, including: (1) the allegation that Judge Kavanaugh has concluded that sitting Presidents can't be indicted; (2) the Yale open letter opposing his nomination; (3) a truly stupid article in The Hill arguing for a lawsuit to block Kavanaugh; (4) the potential conflict of interest with Kennedy's retirement; and (5) the notion of "packing the Court" in 2020. Phew! Next, Andrew gives us an eight-second sneak peek at a court's refusal to permit the Trump administration to modify the Flores settlement and why that's good news. Finally, we end with an all new Thomas Takes The Bar Exam #83 involving spousal privilege. If you'd like to play along, just retweet our episode on Twitter or share it on Facebook along with your guess and the #TTTBE hashtag. We'll release the answer on next Tuesday's episode along with our favorite entry! Recent Appearances Andrew was just a guest co-host on Episode 75 of the Skepticrat podcast; go check it out! Also, Andrew will be discussing Judge Kavanaugh with conservative talk show host Chuck Morse. If you'd like to have either of us as a guest on your show, drop us an email at openarguments@gmail.com. Show Notes & Links
- For starters, here is the Tweet from Alexandria Ocasio-Cortez we criticized, along with the pretty funny humor piece from Andy Borowitz.
- You should definitely read Kavanaugh's 2009 Law Review article “Separation of Powers During the Forty-Fourth Presidency and Beyond” in the Minnesota Law Review.
- This is the Yale Open letter.
- This is the dreadful Ken Levy article in The Hill that Andrew debunks.
- These are the actual Senate Rules, and remember that we broke down the "nuclear option" way back in Episode 59.
- On Anthony Kennedy's negotations, check out Rule 3(C)(1) of the Code of Conduct for U.S. Judges, which we previously discussed in Episode 129.
- As homework for next week, read the Court's order denying the Trump Administration's request to modify the Flores settlement, which we first covered in Episode 184.
- Finally, NEVER ENDING FAME AND FORTUNE goes to:Paul Duggan, Zach Aletheia, Eric Brewer, Teresa Gomez, Andrew Hamilton, Robin Hofmann, and Beverly Karpinski-Theunis for creating the OA Wiki!
Opening Arguments - OA190: Good News, Everyone! (On Abortion Rights & More)
Today's episode -- at long last -- brings us some good news from two rather unlikely sources: first, from the state of Iowa (regarding abortion rights), and second, from the Republican-controlled Senate Intelligence Committee. You won't believe your ears! We begin, however, with a segment that's good news for everyone except Andrew: yes, it's the ever-popular Andrew Was Wrong. This time, Andrew owns up to a serious mistake regarding the fingerprinting regulations at the border, and an almost-as-serious mistake regarding the bustling metropolis of Olathe, Kansas. In the main segment, Andrew breaks down Planned Parenthood v. Reynolds, a recent state supreme court opinion invalidating a 3-day waiting period (with other onerous restrictions on abortion) that provides optimism and a way forward for progressives as we prepare for decades of a right-wing federal judiciary. Find out how states can protect reproductive freedom and abortion rights separate from the U.S. Supreme Court. After that, it's time for a return trip to Yodel Mountain, where we check in on the Senate Intelligence Committee's endorsement of the joint agency report from January 2017 concluding that the Russian government deliberately interfered in the US elections with a strong preference for Donald Trump to Hillary Clinton. Finally, we end the answer to Thomas Takes The Bar Exam #83 regarding the tort of assault and an unloaded firearm. Remember to follow our Twitter feed (@Openargs) and like our Facebook Page so that you too can play along with #TTTBE! Recent Appearances Andrew was just a guest co-host on Episode 75 of the Skepticrat podcast; go check it out! And if you'd like to have either of us as a guest on your show, drop us an email at openarguments@gmail.com. Show Notes & Links
- Click here to read the Planned Parenthood v. Reynolds opinion.
- For future activism, click this link to determine whether your state has elected or appointed state supreme court judges.
- The Intelligence Community Assessment is here; you can also read the Senate Intelligence Committee's report validating that assessment here.
Amicus With Dahlia Lithwick | Law, justice, and the courts - The Argument That Could Reclaim the Supreme Court for Democrats
This week Dahlia LIthwick talks with Sen. Sheldon Whitehouse, a Democratic senator from Rhode Island, about what we can expect over the next several months as Donald Trump nominates a new associate justice to the Supreme Court. He talks about why Democrats must care more about the Supreme Court, the danger of dark money, and the frustration of confirmation hearings.
Please let us know what you think of Amicus. Join the discussion of this episode on Facebook. Our email is amicus@slate.com.
Podcast production by June Thomas.
Learn more about your ad choices. Visit megaphone.fm/adchoices
Opening Arguments - OA189: Supreme Court Justice Brett Kavanaugh
Today's Rapid Response Friday gives you a sneak preview of what to expect from the person we predict will become Donald Trump's next nominee to the Supreme Court, Brett Kavanaugh of the United States Court of Appeals for the D.C. Circuit. We discuss:
- Why it's likely to be Kavanaugh and not any of the other rumored contenders, especially flavor-of-the-minute Amy Coney Barrett
- Kavanaugh's view of the First Amendment's establishment clause and the future of Lemon v. Kurtzman
- Kavanaugh's views on abortion
- How Kavanaugh differs (and how he doesn't!) from Neil Gorsuch when it comes to Chevron deference
- The weird conservative hit squad out to get Kavanaugh
- And much, much more!
- If you want a head start on Tuesday's show, check out the just-released Senate Select Committee on Intelligence report.
- This is the Notre Dame speech/law review article in which Kavanaugh lays out his judicial philosophy and essentially auditions for the Supreme Court.
- We discussed the following cases: Good News Club v. Milford Central School, 533 U.S. 98 (2001), Santa Fe Independent School District v. Doe, 530 U.S. 290 (2000), Priests for Life v. Department of Health & Human Services, 808 F.3d 1 (D.C. Cir. 2015) (en banc), Garza v. Hargan, 874 F.3d 735 (D.C. Cir. 2017) (en banc), United States Telecom Ass’n v. FCC (D.C. Cir., 2017) (en banc), PHH v. Consumer Financial Protection Bureau, 881 F.3d 75 (2018) (en banc), Seven-Sky v. Holder, 661 F.3d 1 (D.C. Cir 2011), and Heller v. D.C., 670 F.3d 1244 (D.C. Cir. 2011)!
- Right-wing weirdo roundups: Here's the National Review endorsement of Kavanaugh; this is the truly bizarre Jacobs piece in The Federalist; and here is the Federalist Society's own rebuttal.
- Finally, a preemptive Andrew Was Wrong: Here's Raymond Kethledge's University of Michigan address on how bad Chevron deference is.
Opening Arguments - OA188: Three Cases About Voting Rights
Today's episode takes a look at three recent decisions from this Supreme Court and how each one will affect voting in the midterm elections: Husted v. Randolph Institute, Abbott v. Perez, and (surprisingly) Janus v. AFSCME. First, though, we begin by addressing a conspiracy theory that's making the rounds suggesting some nefarious relationship between Anthony Kennedy's son, Justin, and Donald Trump. Does this story hold water? Listen and find out! Then, we break down each of the three cases: Husted, involving Ohio's efforts to purge voters from its rolls; Abbott, involving Texas's efforts to racially gerrymander Congressional districts; and Janus, which will result in drastically weaker public sector unions. What does this mean for the midterms? (Hint: it's not good.) Finally, we end the answer to Thomas Takes The Bar Exam #82 regarding the search and seizure of heroin from plain sight. Remember to follow our Twitter feed (@Openargs) and like our Facebook Page so that you too can play along with #TTTBE! Recent Appearances Thomas was just a guest on Episode 421 of the Cognitive Dissonance Podcast. If you'd like to have either of us as a guest on your show, drop us an email at openarguments@gmail.com. Show Notes & Links
- If you missed last year's Fourth of July Spectacular, that was Episode 83.
- You can read the Liptak & Haberman New York Times article about Trump and Kennedy by clicking here.
- The Ohio case is Husted v. Randolph Institute, and the Texas cdase is Abbott v. Perez.
- Before you read Janus v. AFSCME, you may want to check out our extensive coverage of the case back in Episode 150.
- The statute the 5-4 majority blatantly ignores in Abbott is 28 U.S.C. § 1253.
- Finally, this is the research Andrew mentioned regarding the correlation between right-to-work states and lower voter turnout and lower Democratic share of the vote.
Opening Arguments - OA187: Lowering the Lukumi Bar?
Today's Bonus Episode asks if there's a way to make sense of the Supreme Court's Lukumi jurisprudence in light of this week's rulings in Trump v. Hawaii (the Travel Ban), Masterpiece Cakeshop, and the somewhat surprising decision to remand the Arlene's Flowers case back to the state of Washington. We begin, however, by checking in with the Southern District of New York's Order approving the Taint Team's review of documents seized from Michael Cohen's offices by the Department of Justice. How many documents did the Team recommend the Court withhold as privileged? The answer may surprise you! After that, we revisit the thesis advanced by Andrew Seidel in Episode 180 that the Supreme Court's decision in Masterpiece Cakeshop might result in a more vigorous application of its 1993 decision in Church of the Lukumi Babalu Aye v. City of Hialeah, 508 U.S. 520 (1993). Next, we break down the Supreme Court's 5-4 decision in NIFLA v. Becerra, in which the Court struck down a California law regulating so-called "crisis pregnancy centers." After all that, we end with an all new Thomas Takes The Bar Exam #82 involving the legality of a search for heroin. If you'd like to play along, just retweet our episode on Twitter or share it on Facebook along with your guess and the #TTTBE hashtag. We'll release the answer on next Tuesday's episode along with our favorite entry! Recent Appearances None! If you'd like to have either of us as a guest on your show, drop us an email at openarguments@gmail.com. Show Notes & Links
- Check out the Southern District of New York's Order regarding Cohen's meager haul of privileged documents.
- Andrew Seidel set forth his "Lukumi bar" thesis in Episode 180; you can read Church of the Lukumi Babalu Aye v. City of Hialeah, 508 U.S. 520 (1993) for yourself and then compare it with both Trump v. Hawaii and Masterpiece Cakeshop.
- We discussed Planned Parenthood v. Casey at length in a two-part series: Episode 27 and Episode 28; you might want to compare the statute approved in that case with the one struck down by the Court in NIFLA v. Becerra.
Amicus With Dahlia Lithwick | Law, justice, and the courts - With Kennedy Gone, What’s on the Chopping Block?
The Supreme Court’s 2017 term ended with some blockbuster opinions and, most dramatically, Justice Anthony Kennedy’s retirement announcement. On a special edition of Amicus, Dahlia Lithwick is joined by Slate legal writer Mark Joseph Stern and University of California, Irvine, law professor Leah Litman to discuss what it all means.
Yes, it's a Supreme Court Breakfast Table without a Breakfast Table!
Please let us know what you think of Amicus. Join the discussion of this episode on Facebook. Our email is amicus@slate.com.
Podcast production by June Thomas.
Learn more about your ad choices. Visit megaphone.fm/adchoices
Opening Arguments - OA186: Anthony Kennedy & the Future of the Supreme Court
Today's Rapid Response Friday comes after a busy week at the Supreme Court, capped off by the (somewhat) surprising announcement that Associate Justice Anthony Kennedy intends to retire as of July 31, 2018. We break down everything about this news, including:
- What the Trump administration is likely to do next
- Who President Trump might nominate to fill Kennedy's spot
- How the Democrats should respond
- What the next Supreme Court might look like
- How all of this plays in with the 2018 midterms and 2020 Presidential election
- And much, much more!
- We broke down the "nuclear option" in Episode 59. Mitch McConnell announced that the Senate would not recess for the summer on June 5.
- Here are the (generally reliable) Cook Political Report ratings of the 2018 Senate races.
- This is the Mother Jones article on Anthony Kennedy's 2017-2018 votes.
- This is the list of Trump's 25 potential Supreme Court nominees.
- These are the resources discussed in the future segment, including the When Every Vote Counts law review article, the Slate article on 5-4 splits, and the SCOTUSBlog data regarding the 2017-2018 term.
- Finally, if you're feeling nostalgic, you might want to reread Obergefell v. Hodges while it's still good law. An d if you're feeling super optimistic, you can even check out the "Above the Law" blog post arguing that it will survive Kennedy's departure (it won't).