One of americas most distinguished judges, and is so well suited to help us cast light on the state of democracy in the judiciary today. Neal katyal, one of americas most distinguished Supreme Court advocates and scholars who also happens to be my brother in law, and now i have to do this. The follow up line, which is we now have a roadshow going around the country called brothers in law. So this is part of that installment, and were much, very much looking forward to weve enjoyed milking this for all its worth for a while. A judge, this is a perilous time for the judiciary. Mount vernon has just commissioned a poll about americans attitude toward democracy in the judiciary. We may be able to call it up a little bit later, but it suggests a tremendous polarization about the way americans see the courts with at the moment. Republicans tending to favorite and democrats less so. Also, division about the way americans think the constitution should be interpreted with democrats more than republicans favoring a living constitution and republicans favoring an originalist approach. Can you put this perilous moment in Historical Perspective . Theres certainly been shifts in the judiciarys view of National Power versus states rights throughout American History, from the founding to reconstruction to the new deal to today. But what at the moment, were going to deregulate tery moment on the court, a kind of states rights skepticism of federal power. Are we more polarized than weve ever been when it comes to the judiciary, or is this part of a normal historical pattern . Well, im not a historian, jeff. Im a federal judge, have been around a long time. And my perspective is based pretty much on my own experience. But i dont have any doubt that that in terms of how the courts function, were much more the country and the courts themselves are far more polarized than they were 25 years ago. And you see that in our in our courts. In terms of the increasing large number of ideologically divided, not just Supreme Court decisions, but decisions of the lower federal courts, where i sit, theres a huge debate going on in the Supreme Court about some pretty fundamental constitutional questions. You mentioned several of them, the role of the federal administrative state, Voting Rights, affirmative action, abortion. All of these issues are being debated at the same time. Im not aware of a time in American History where thats happened at least not in in current American History. And i, i, i, i as a as a as a judge on an even as a as a judge, even on an inferior court. I live with these debates virtually every day. Neal, youve experienced this polarization as an advocate and as a scholar. Is this part of a normal pattern or are we unusually polarized at this moment . Yeah, no, i think were in a very abnormal moment right now. If you think back to alexander, because great book, the least Dangerous Branch to argument of that book, which is in my view, the greatest book in the last century of constitutional law. The argument is that the court husbands its power by not deciding by using what he called the passive virtues, by not doing too much. And here we now have a Supreme Court that is best described as the yolo court. I mean, you live only once and like youre there doing everything, all the things the judge mentioned, abortion, affirmative action, Voting Rights, getting rid of chevron guns, you know, the religion. You know, lgbt issues. I mean, they are deciding everything and so one thing is just the scope of what theyre deciding. And the other is some of the substance. I mean, and this is just a descriptive point. People can have different views on roe versus wade. But remember, roe versus wade decided in 1973 by a court that is majority republican appointees, 7 to 2 and written by harry blackman, a republican appointee. And when it looked like roe was under question three justices in 1992, all appointed by republican president s kennedy, souter and oconnor said, look, you can have disagreements about roe, but if you overrule roe, if we were to overrule roe, it would really damage the legitimacy of the court that roe was woven into the fabric of our society and social expectations have crystallized around it. And so its no surprise to see the courts, you know, kind of polls and stuff really drop in the wake of the dobbs decision. Thats, after all, what justices oconnor, kennedy and souter warned us would happen, that it would make constitutional law look like its about the personnel of the court rather than principle. Lets talk about some of the areas that youve each identified, beginning with Voting Rights. Judge, you wrote of the Shelby County decision involving the constitutionality of the Voting Rights act, which the Supreme Court later decided. Tell us what you held and what the court held and why you think the court was wrong. So the issue in actually, jeff, i got reversed twice. It was it was it was northwest. Austin was the first one. And then Shelby County. Wow. But well just talk of condolences. Yeah. So the issue in Shelby County was the constitutionality of what are called the preclearance provisions of the Voting Rights act of 1965. The Voting Rights act of 1965 is generally viewed as probably the most effective civil rights bill ever passed. And one of its provisions required that certain states, most of them in the south, with histories of discriminating on the basis of race preclear all of their voting changes, either with the Justice Department or a special three judge District Court in washington. Every note those states could not change their voting procedures without without convincing the Justice Department or the court that those changes would not have the effect of discriminating against black voters or were not intentionally discriminatory. Very powerful statute and its impact on the south was dramatic in terms of the number of by people voting and the number of black elected officials. And this law was sustained by the Supreme Court in a case called katzenbach South Carolina versus katzenbach in that in the late sixties as a as what as quote, appropriate legislation. Thats the language of section two of the 15th amendment section. The 15th amendment, which prohibits discrimination on the basis of voting, gives in section two congress the power to enforce it through appropriate legislation. Supreme court ruled in katzenbach that this was appropriate legislation and four or five times since then, the Voting Rights act has been reenacted by congress. Four or five times each time. The Supreme Court sustained its constitutionality. That is, until Shelby County in Shelby County. The case came to my court. You know, this this this this section is about interpreting the constitution where i sit on an inferior court. I have a copy of the constitution on my desk, and i use it all the time, but mostly in states with my law clerks and my grandchild. And when i when i have a constitutional case, im interpreting Supreme Court decisions that interpret the constitution. Thats thats what i do at my level. All i have to go on is appropriate. What is appropriate . Well, you have to read the Supreme Courts five or six decisions to understand what it is. I did that in Shelby County, and i actually thought the case was quite easy. In the 15th amendment. This is what the Supreme Court has said about about the 15th amendment. What what the court has said is that when congress we added the 15th amendment to the constitution, we dramatically changed the relationship between the federal government and the states. And Congress Gave the congress new authority over the states to prevent it. No states from discriminating on the basis of race. And it used a very general term like appropriate legislation. And what the Supreme Court had said about that for decades is its up to congress. The courts have to respect Congress Judgment about this. The courts have to respect congresss assessment of the problem and its about what kind of legislation is appropriate. And even something as dramatic as preclearance, something that requires the states, as one of my colleagues once said, to come to washington bureaucrats with hat in hand to change their procedures, even that is constitutional. Supreme court, in a 5 to 4 decision, disagreed and held and held that the Voting Rights act interfered with state sovereignty and also treated the states differently, which it could not do. It was 5 to 4 strictly ideological, a decision, and was the first of several Supreme Court decisions chipping away at the Voting Rights act in in Shelby County. The court assured us not to worry because theres still section two, which is the provision of the statute that limits it prohibits discrimination based on voting. But several years after that, in a case called brnovich versus arizona, the court weakened section two. Also. Thank you for describing that so well and so clearly, neal, just last term you argued and won what many have described as among the most significant cases that affect democracy in voting, you know, of all time and the more and milligan case judge luke called it the most important Supreme Court decision since marbury versus madison. Tell us what the stakes were, how you won it and what the decision tells us about how to interpret the constitution and the different approaches the different justices take. So before talking about more versus harper, the recent case, i do want to just pick up a little bit on judge tatel discussion of the Voting Rights act, because i had the privilege of defending his opinion in northwest austin, the predecessor case that was like my fourth argument at the Supreme Court. I was like 46 arguments ago. But i remember when i looked at the case and i looked at the opinion, which was brilliant. I found it really easy to defend on two basic points. One, congress had repeatedly reauthorized the Voting Rights act by huge margins five different times. So a democratic mandate for it and i thought it would be hard for the supreme to strike down that democratic. And two, there was a lot of history behind this. And caleb assigned section of the 14th amendment section to the enforcement provision that would, i thought, compel the court, particularly the originalist minded members of the court, to support it. So im arguing the case on behalf of the government, and im my cocounsel is from the naacp legal defense. I go first and i basically look at Justice Thomas the entire 30 minutes of my oral argument because i wanted him to. He was the originalist on the court, the selfproclaimed originalist. I had all this originalist evidence and the history behind this i thought was so compelling. My cocounsel got up and argued and he got the question from justice scalia. This act was reauthorized by the senate 98 to 0 four years ago. What law passes what what act of Congress Passes 98 to 0 . It must have been signed. Bolick legislation. And i am sitting there in my chair thinking, if i could just be up at the podium, i would just say, justice scalia, your confirmation vote was 98 to 0. Drop the mike and be done with this whole Supreme Court litigation thing. But what the court did in in northwest austin as it did basically uphold the Voting Rights act, only to reverse it four years later. So thats an illustration and just of how much even before this modern court with the new justices on it, you saw changes as pretty dramatic changes in. The 2009 to 2013 period of which Shelby County, i think was the most significant. Now, i argued to get two more versus harper when our get when im arguing a constitutional case, i am willing to use any method of constitutional interpretation to try and appeal to the different camps on the court. But if i have an original last argument, thats where i want to be, because that is where right now the gravity of the court is about the original understanding of the constitution. So more versus harper was a case about elections clause of the constitution. And you know state legislatures and may and state courts make all sorts of rules for voting and they have for four decades in these centuries. What the theory of this was by the republicans was that state legislatures and only state legislatures can make rules for federal elections. That includes gerrymandering, redrawing maps that includes extending the polling places like if theres a hurricane, you know, extending polling hours, you know, extending absentee ballot rules. State courts have been doing all of this because legislative action, particularly in kind of fast moving crisis situations, is very difficult. So more versus harper is a case that came from north carolina. North carolina is a very politically evenly divided state. Its roughly 5050. Theres 14 seat congressional seats in north carolina. That that is 14 seats. The us house of representatives, the state legislature controlled by republicans, drew the map in a way that was 11 republicans seats, three democratic seats. And that is possible now with the advent of statistics and modern modern computing power. And its not something only republicans do in the democratic legislatures states, they do it to, but state legislatures tend to be controlled by republicans. So they draw this map 11 to 3 voters of north carolina, to a nonpartisan group, common cause. Thats my client challenged this and this violates our state constitution. And they go to the state Supreme Court and they say this and the state Supreme Court agrees with them. So then the, losers, the Republican Committee brings it to the u. S. Supreme court and they say, and im sorry, this story is long, but i think its a helpful one for understand interpretation. And they say that state courts like the north Supreme Court have no business in federal elections. And the claim they make is based on the elections clause, which says the times places and manner of Holding Elections for senators and representatives. Shall be proscribed in each state by the legislature thereof. So the rules for federal elections shall be proscribed in each state by the legislature thereof. And so the republicans say this says the legislature thereof doesnt say state court. So therefore, it only means state legislatures. Now, those of you with Legal Training know that or those of you whove dabbled in this know that sometimes texts have to be understood with reference to context. A rule that says, you know, no vehicles in the park doesnt exclude babies, strollers. You know, so sometimes you have to look to the background understanding of what a word means here when you look to the background under our standing, the original understanding of what the word legislature meant, it was overwhelmingly in our favor. That is, the articles of confederation. In 12 of the 13 states had in 12 during the articles of confederation. 12 of 13 states had state constitutions. Tions that regulated voting to the committee to the continental congress. And so you had states and state courts participating in the business of federal elections from 1781 to 1787. Its the exact same provision from the articles of that is transplanted over to the United States constitution. And in addition, theres just all this original list evidence that basically the founders believed in checks and balances. They would have never let just state legislatures have Carte Blanche over something as important as elections and the like. Okay. All that is to say, i had my like Golden Ticket for the Supreme Court in terms of the original understanding of the document. Then the question was and a 30 minute Supreme Court argument, they actually had me up for more than an hour. But the rules are 30 minutes. How do you actually get out . And in a way thats persuasive to the court. Supreme Court Advocacy has changed a lot just in the last two years because for my first, like 45 arguments before covid covered, i would stand up. Id have a line, my legal pad that id hoped to say, and then id get a question and then another question. And i averaged about 50 questions in a 30 minute oral argument, and they could come from anywhere on the bench. During covid, they moved to speaker phones because they were afraid, of course, of cameras in the courtroom. Thats a whole nother story. And and so we they took turns going one by one and asking questions in order of seniority. And Justice Thomas was the first justice on the speakerphone and nobody was sure in the fir