Supreme Court Restores Alabama Voting Map

It’s a day of disagreement! David and Sarah walk through a critical Supreme Court voting ...

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It’s a day of disagreement! David and Sarah walk through a critical Supreme Court voting rights case, and come out in a different place. They walk through the Sarah Palin trial, and come out in a different place. But then, unity reigns when Sarah concludes the podcast by dunking on Russia and hanging on the rim.

Show Notes:

–Merrill v. Milligan

–Purcell v. Gonzalez

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  1. Brendan Bossard

    “The heart of the righteous ponders how to answer, but the mouth of the wicked pours out evil things.” (Proverbs 15:28, ESV)

    The absence of malice principle provides a form of qualified immunity to people who slander—bear false witness against—public figures. This immunity differs from police shootings in that it has arguably valid constitutional protection in the First Amendment. They share the same poor moral compass, however. I offend the other person whether I damage their reputation or shoot them. I break one of the ten commandments, which say nothing about intent. "You shall not murder." "You shall not bear false witness against your neighbor." Period.
    Malice should be hard to prove—legally. Isgur (to differentiate Sarahs) correctly questions our ability to discern malice in the law. Courts can only judge based on the concrete. How do we codify anti-malice law? This may, however, be a time for re-examining this matter. Google did not exist when the precedent was set. Fact-checking on a better than rudimentary level can easily be done in the space of a few minutes. David correctly asserts that Mr. Bennett could have checked his facts before inserting the erroneous statement in 2017. The rationale that they had to hit the presses also holds no water for me. They were not breaking a news report. They could have put off publishing the opinion for one more day to allow due diligence. Morally it expresses corrupt character.
    In a sense this is turnabout for Palin, however. She fed fires by promoting an Obama impeachment. (Need to fact-check that? Look on Google!) She eventually softened that stance—but then, the New York Times corrected itself after pinning nefarious motives on her. Did she not consider publicly thanking them for their correction and expressing hope that they would not again do the precise thing against which they opined? This might have opened doors to reconciliation that this nation sorely needs. That she chose to be pugilistic about this saddens me and consumed public resources that could have been used for other things.

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    Psmangelsdorf

    Regarding Sarah's points on newsrooms making mistakes:

    I think there is a clear difference between mistakes made about facts of an evolving situation, and mistakes about an event 5 years prior. There is also a a difference between statements of mathematical/scientific facts, and statements about an individual.

    Here's a fictional example of the difference: "It appears that John Smith was motivated by Sarah's anti-Remnant rhetoric when he shot Jonah last night" vs. "John Smith was motivated by Sarah's anti-Remnant rhetoric when he shot Jonah in 2017." (when there is a clear, easy to find reporting by the author's own paper that John Smith was just deranged)

    There is also a big difference between "2+2=5" and "Sarah stated that 2+2=5 while speaking at an event in 2017" One is in regard to a widely understood mathematical fact, the other, while it may be widely accepted, is something that an author SHOULD be expected to at least do some due diligence before publishing, even if its a rushed editorial about Sarah.


    When I write recommendations for my clients, there are some things that I know because they are scientific test results, but if I'm going to recommend a product, or recommend against a product, I go double check the manufacturer's website and data to make sure that I'm right, even if it's a product that I interact with often.

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    Dr. Livesey

    Sarah argued that when the New York Times editorial writer wrote the inaccurate editorial, he was doing so in good faith, so the legal standard for libel ("malice") wouldn't be met. But I think the point at which to judge good faith is the point of publication.

    If I heard correctly, Ross Douthat wrote that email about the editorial being inaccurate before publication, then the editorialist left a phone message to a subordinate that the facts should be checked — and that was the end of it. The editor was still responsible at that point to get the facts right ***until it was too late to pull the editorial from publication or fix the error***. It was the editor's responsibility to at least Google the subject. That seems to make for a stronger case that the "malice" standard wasn't met.

    Apparently the judge threw out the case today, so probably none of this actually matters, but I do think the point of publication is the crucial time to judge "malice" in any libel case.

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    Hawks Law Office

    An interesting historical footnote on voting rights for Sarah: Just before the 1960 presidential election, Texas enacted a law that (1) required voters using paper ballots to both mark their preferred candidate and cross-out the others, while (2) allowing election officials to count votes if the voter's intent was nonetheless clear. Not surprisingly, given that election officials were overwhelmingly Democratic, pro-Kennedy precincts had far lower disqualification rates than pro-Nixon precincts. See volume 4 of Caro's LBJ biography, The Passage of Power (p. 150-151).

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    Hawks Law Office

    One undiscussed alternative to the current NYT v. Sullivan standard would be to allow states to pass defamation laws that don't require actual malice or reckless disregard for an award of nominal damages plus attorneys' fees, but continue the Sullivan standard for any award of compensatory damages. Thoughts, David and Sarah?

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    RobertA

    A question I've been thinking about over the last few episodes, with all the talk of clerk armies and the importance of clerkships....

    Where did the tradition of clerkships emerge from? It seems a strange juxtaposition that the primary support mechanisms for lawyers at the apex of the judicial system (including the Supreme Court!) are junior lawyers fresh out of law school. If you were building the system from scratch, wouldn't it make more sense to support judges with "professional" clerks that have many years' experience in researching, writing and arguing about the law?

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    RobertA

    A question that I've been thinking about over the last few episodes, with all the talk of clerk armies and the importance of clerkships...

    Where did the practice of using clerks to support judges come from? It seems a strange juxtaposition that the primary support mechanism for lawyers at the apex of the legal system (including the Supreme Court!) are junior lawyers fresh out of law school. Wouldn't it make more sense, if you were building from scratch, for judges to use "professional" clerks with many years of experience in writing, research and debating the law?

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    1. Avatar photocircle-angle-nib
      Sarah Isgur vertical-nib Author

      As best I remember, the practice started back in the days as legal apprenticeships were waning in the late 1890s and many of them did stay for years. Scotus clerks don’t look like our current system until the 70s. And some of those were still coming straight out of law school until I believe 1995 was the last ‘straight through’ clerk.

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    Neil Hansen

    Taking advantage of Sarah’s recent invitation to use the AO comment section to ask general questions, I would like to ask David a question. This is in no way a criticism but merely an observation I’m curious about. You have a tendency to repeat yourself when you are trying to make a point and I was wondering if that is something you taught yourself to do as a litigator?

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    Bill Dyer (aka Beldar)

    Another content-packed show, related in an entertaining and engaging style. Good job!

    Mr. French, I'm flattered that you read and considered my grumpy comment about polygraph tests. And thanks for your gracious acknowledgement that we don't have any machines to see inside each other's souls.

    You're right, too, that issues involving discrimination, intentional and otherwise, are hard. We long for something as simple as a blood pressure cuff and some electrodes hooked up to a swinging needle on a truth-o-meter which might spare us from having to make hard judgments on hard issues. That we have no such means, no such devices, ultimately strengthens your point that we ought be thoughtful and compassionate in forming and rendering our judgments, as to both moral dimensions and legal dimensions of these issues.

    Ms. Isgur, it is a joy to hear you discuss redistricting with such passion and lucidity and ready reference to relevant history and law. I don't agree with all your takes, but I agree with most of them, and they are all well-argued and well-informed.

    Your anecdote about Sen. Sessions' conversion to the Republican Party was also quite poignant. It's a great shame that he fell under Trump's spell, and did so much to cloak Trump's early campaign with legitimacy — for which, in the manner of karma or perhaps Greek tragedy, he paid such a terrible price. My mixed feelings about him notwithstanding, I envy you your chance to have worked for him.

    I'm still deeply puzzled by Sarah Palin's lawyers' decision to sue in the SDNY instead of in a state court in Wasilla, with a non-diverse co-defendant like its local distribution agency (who by now probably would have been voluntarily dismissed, removal no longer being a risk). Were I to make a guess at the likely verdict, my guess would be that NYT loses on liability, but that the jury awards only trivial or nominal damages, in a classic pox-on-both-your-houses split decision.

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  10. IHF

    Sarah Isgur's analysis is usually quite sophisticated . Here, I think, she truly just misses the fundamental point. If you wish to combat racial gerrymandering (i.e, districts consciously designed to take political power away from voters of a particular race), then you must design districts on a racial basis. That isn't some sort of conceptual flaw in the remedial structure. Because racial profiling is at the heart of the problem of racial gerrymandering, there is no route to a solution that doesn't have to use racial profiling as a key part of the solution. You might as well complain that using backfires is inconsistent with the goal of stopping a fire because it uses fire--except that, in the case of firefighting, there may be tools other than backfires that can accomplish the purpose. In the case of racial gerrymandering to disempower, the only effective remedial tool is racial gerrymandering to empower. That is a sad fact--but it is a fact (in part for the reasons David French alludes to).

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    1. Avatar photocircle-angle-nib
      Sarah Isgur vertical-nib Author

      But that’s not the tension. Obviously the way to fix racial gerrymandering is to use race in the other direction. The problem is that under the equal protection clause you can’t treat someone differently under the law because of their race. Like in affirmative action, any time you are using race to preference one group—you are discriminating against another.

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      1. IHF

        Thank you for taking the time to respond to my comment.
        My earlier reply to you was first duplicated, then disappeared. I’ll hope for better luck with this one.
        I am no expert in U.S. constitutional law, but I think I am right in saying that one of the ordinary rules of statutory interpretation that also applies to the Constitution is that one must always seek a reading that gives meaning to all parts of an enactment, allowing them to work harmoniously as a whole, rather than to see them as separate, conflicting provisions. Applying that principle, surely it is appropriate to read the equal protection clause as not preventing racial preference when racial preference is the only way to remedy violations of other guaranteed rights (as we are agreed is the case with racial gerrymandering).
        I would think it uncontroversial to say that a Constitution should not be read as creating gridlock—ostensibly establishing a fundamental substantive right in one provision, but preventing effective measures to vindicate it in another.

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        1. Avatar photocircle-angle-nib
          Sarah Isgur vertical-nib Author

          A few things worth noting. You are totally right about the canons of interpretation—but let me explain them a little more. First, canons are only used when there is ambiguity. If a statute passed by Congress conflicts with the equal protection clause, then the constitution wins. Second, the canon you’re referring to is a little more nuanced: where there is ambiguity you try to read statutes so as not to conflict with the constitution. So in this case, if we think there’s ambiguity, it’s section 2’s use of race for redistricting that would lose. Not the equal protection clause prohibition on using race.

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          1. IHF

            Thank you again for taking the time to respond so patiently to someone who can claim no qualification to offer opinions on U.S. constitutional law. May I tax your patience with a further thought?
            As I understand it, the Voting Rights Act was passed under the enforcement authority of the 15th Amendment. The constitutional validity of the Act’s provisions therefore depends on the scope of the remedial legislative authority created by that Amendment.
            The initial constitutional question, then, would not be whether the provisions of the statute that are relied upon to support the use of remedial racial gerrymandering conflict, on their face, with the 14th Amendment, but whether those statutory provisions, on their face, fall within the scope of the remedial legislative jurisdiction created by the enforcement provision in the 15th Amendment.
            If we are agreed (as I think we are) that remedial racial gerrymandering is the only effective tool to combat disenfranchising racial gerrymandering, then the answer to that initial question must be “Yes”.
            That being so, a second constitutional question arises, which is how one ought to resolve an apparent conflict between two constitutional amendments. Looked at from this perspective, the conflict is not between the Voting Rights Act and the 14th Amendment; it is between the prohibition (the negative rule) in the 14th Amendment and the remedial legislative authority (the positive rule) established in the 15th Amendment.
            Again, once we are agreed (as I think we are) that remedial racial gerrymandering is the only effective tool to combat disenfranchising racial gerrymandering, then it seems to me that one must read the prohibition in the 14th Amendment and the remedial legislative authority in the 15th Amendment together so as not to have the 14th Amendment limit the grant of legislative authority in 15th Amendment to the extent that the 15th Amendment cannot be relied upon as the source of constitutional validity for legislation supporting the deployment of the sole effective remedy for racial gerrymandering.
            Please don’t feel any obligation to respond if I am simply being obtuse.

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