Affirmative Action for Mediocre Men

**Melissa Murray** (0:00)
Strict Scrutiny is brought to you by Americans United for Separation of Church and State. The Trump administration's excessive Christian nationalist rhetoric is only building as we move toward the 250th anniversary of the Declaration of Independence.
And those most caught in the crossfire are specifically federal workers. A multi-faith group of federal employees filed a new lawsuit against the US. Department of Agriculture for violating the separation of church and state and the religious freedom promised in our Constitution.
Our friends at Americans United for Separation of Church and State received emails from multiple USDA employees. A handful of employees reached out saying the proselytizing Easter email sent by Secretary of Agriculture Brooke L. Rollins to more than 100,000 USDA employees is an abuse of power that violates the separation of church and state promised in the First Amendment. And they are absolutely right. Again, separation of church and state. If you can read the First Amendment, you see that the government cannot establish a national religion, cannot endorse a national religion. And here we are sending a proselytizing Easter email to 100,000 federal employees. The hits just keep coming from this administration. And Americans United is doing their best to keep up the fight against creeping Christian nationalism. If you want to help, head over to au.org/crooked to learn more about their work and how you can get involved.

**SPEAKER_2** (1:27)
Mr. Chief Justice, please support. It's an old joke, but when an argument man argues against two beautiful ladies like this, they're going to have the last word.

**SPEAKER_3** (1:39)
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.

**Melissa Murray** (2:09)
Hello, and welcome back to Strict Scrutiny, your podcast about the Supreme Court and the legal culture that surrounds it. We're your hosts. I'm Melissa Murray.

**Leah Litman** (2:18)
And I'm Leah Litman. And it's just us this week, which means let the wild rumpus begin.

**Melissa Murray** (2:25)
That is correct, folks. Without the tempering influence of Catherine Shaw, who knows what we two chaos goblins are going to get up to? Maybe, Leah, we will draft a concurrence saying that Section 2 of the Voting Rights Act doesn't apply to redistricting claims or something crazy like that.

**Leah Litman** (2:42)
Wrong chaos goblins, Melissa. That's Clarence and Neil. I think we would write a different concurrence. But fear not, listeners.
We can ensure you that this is going to be wild. And here's what we have on tap. We'll start with the news, including some updates on the slush fund. Then we'll turn to the opinions that the court issued last week, and we'll close with a dab of court culture, our favorite things, and an interview that Melissa did with law professor Judith Resnik about her recent book, Impermissible Punishments, How Prisons Became a Problem for Democracy.

**Melissa Murray** (3:14)
And speaking of problems for democracy, we have some breaking news.
Listeners, as you know, the court's decision in Louisiana versus Calais nullified Section 2 of the Voting Rights Act, which had prohibited states from drawing districts that resulted in meaningfully less political and electoral power and political and electoral opportunities for minority voters. Basically, before Calais, under Section 2, states could not effectively pack and crack the black electorate by consolidating them into a single district and then diffusing the remainder across several districts when it was very possible to draw two or more nice, reasonably configured, pretty districts where black voters could actually have political opportunities.

**Leah Litman** (3:58)
And in ending the prospect of minority opportunity districts, Calais insisted that it was merely making the Voting Rights Act closely track those cases where the Constitution itself would limit states redistricting. So the Constitution prohibits redistricting that is intentionally racially discriminatory and intentionally disadvantages black voters.
Footnote or maybe it doesn't. We'll get to that in a second. But Calais said it wasn't adopting an intentional discrimination requirement or rule. It was just limiting the Voting Rights Act to occasions that are likely intentional discrimination and give rise to an inference of intentional discrimination. And just to be clear, we've seen these ghouls run this play before in 2013 decision, Shelby County versus Holder, the nation's leading institutionalist, John G. Roberts, assured us that even though he was eliminating the preclearance regime, there was no need to worry because section two remained in place and prohibited discrimination in voting. Now the court tells us we shouldn't be alarmed that Calais gutted section two of the Voting Rights Act because the Voting Rights Act and the Constitution still prohibit intentional racial discrimination. Again, hold that thought for a second.