This is Bloomberg Law with June Grossel from Bloomberg Radio.

This is Bloomberg Law with June Grossel from Bloomberg Radio.

We're in the business of complying with federal court decisions, and when they told us that we needed to draw a second majority black district, that's what we did.

We're in the business of complying with federal court decisions, and when they told us that we needed to draw a second majority black district, that's what we did.

That's how Louisiana Solicitor General Ben Aguinyaga summed up his state's position in the challenge to its congressional map at the Supreme Court. It's a case that involves the interplay between race and politics in drawing political boundaries, and the oral argument signaled a deep divide over the use of race in redistricting. At issue is the map drawn by Republicans to simultaneously create a new majority black district as required by a court order and protect incumbent Republicans, including House Speaker Mike Johnson, and the justices seemed divided over the question of whether race was the predominant factor driving the new map. Chief Justice John Roberts called the new district a snake that runs from one end of the state to the other.

That's how Louisiana Solicitor General Ben Aguinyaga summed up his state's position in the challenge to its congressional map at the Supreme Court. It's a case that involves the interplay between race and politics in drawing political boundaries, and the oral argument signaled a deep divide over the use of race in redistricting. At issue is the map drawn by Republicans to simultaneously create a new majority black district as required by a court order and protect incumbent Republicans, including House Speaker Mike Johnson, and the justices seemed divided over the question of whether race was the predominant factor driving the new map. Chief Justice John Roberts called the new district a snake that runs from one end of the state to the other.

And you think the drawing of this district was not predominantly based on race. I think that it runs from one side of the state angling up to the other picking up popular black populations as it goes along.

And you think the drawing of this district was not predominantly based on race. I think that it runs from one side of the state angling up to the other picking up popular black populations as it goes along.

But the three liberal justices suggested the district shape was a product of politics, something the Court has previously said is a permissible factor. Here's Justice Katanji Brown Jackson.

But the three liberal justices suggested the district shape was a product of politics, something the Court has previously said is a permissible factor. Here's Justice Katanji Brown Jackson.

Is the reason why we're looking at a snake like map rather than the compact map is because of political considerations.

Is the reason why we're looking at a snake like map rather than the compact map is because of political considerations.

Politics is the only reason that the state shows that map over the compact maps.

Politics is the only reason that the state shows that map over the compact maps.

Joining me is elections law expert Richard Brefalt, a professor at Columbia Law School. Rich explained the issue before the justices.

Joining me is elections law expert Richard Brefalt, a professor at Columbia Law School. Rich explained the issue before the justices.

This is a very strange and unusual case. In order to discuss the issue, you actually have to go back to a prior case. And so a couple of years ago, lawsuit was brought in Louisiana by black voters claiming that the congressional map in Louisiana discriminated against black voters because they were underrepresented, that it had a discriminatory effect. Louisiana is something like one third black. The state has six congressional districts, but only one of them had a black majority. The plaintiffs said it was relatively easy to create a compact district that followed traditional districting patterns in part of the state that would create a second black majority district. They went to court and they won. They won a preliminary injunction. It was a five day trial, lots of exhibits, lots of witnesses. They wanted a district court, and that was subsequently affirmed by the Fifth Secret Court of Appeals, which is itself a pretty conservative court. The question happens what to do next, how to redraw the map. The plaintiffs had a map that they liked which would have created that second black majority district, but the usual rules to allow the legislature to crack at it and to see if they can do it in time. Otherwise a court will create a map. So this went to the Louisiana legislature and the governor said, we need to do a map. We would have liked to fight this case more, but we've already lost twice in the district court, in the Court if Appeals. We need to write our own map rather than having a court impostmon on us. When the legislatures sat down to draw a map, though, they had a problem because it's a Republican majority legislature, Republican governor Publican delegation and several of the Republican members of Congress, and Louisiana are very powerful, including the Speaker of the House, the majority leader, and somebody else they really liked, and so they decided the legislature in Louisiana that they would sacrifice one Republican district, but not the district that made sense in terms of the plaintiff's original lawsuit seeking a black majority district. They kind of cobbled together a new district that stretched across the state and got rid of a different white Republican congressman in order to preserve the districts of the Speaker, the majority leader, and a member of Congress who they favored. So this news district is a black majority district that comes out of this lawsuit. Now, some white plaintiffs have sued claiming that this district is unconstitutional because it's unconstitutionally race based, that is a racial gerrymander, that the decision to draw this district was primarily based on race, and the Supreme Court has for some time said that that's unconstitutional. The state is defending it, as are the original plaintiffs, the black voters, on the grounds that no it's not racially predominant. It's really politically predominant. The reason this district has this odd shape is not really because of race, but because the legislature wanted to basically protect Republican incumbents, and a different lower court than the one that heard the original case said, no, this is racial predominance. The only reason this district exists is to create a black majority district. And that's the argument before the Supreme Court, and it's a kind of an odd one. Supreme Court has said in the past that if something is drawn primarily to the basis of race and there's no other justification for it, then it may be constitutional the ncal protection clause. But if it's done primarily for party, that's parties in germymandering, and you can challenge that. And the question of whether something is based on race or on party has really been before the Court several times. But that's kind of what they have to decide here. Is this district primarily based on partisanship because that's why the legislature drew it the way they did it, Or is it based on race because they wouldn't have been drawing a new district at all but for the earlier judgment that Louisiana needed a second black majority district.

This is a very strange and unusual case. In order to discuss the issue, you actually have to go back to a prior case. And so a couple of years ago, lawsuit was brought in Louisiana by black voters claiming that the congressional map in Louisiana discriminated against black voters because they were underrepresented, that it had a discriminatory effect. Louisiana is something like one third black. The state has six congressional districts, but only one of them had a black majority. The plaintiffs said it was relatively easy to create a compact district that followed traditional districting patterns in part of the state that would create a second black majority district. They went to court and they won. They won a preliminary injunction. It was a five day trial, lots of exhibits, lots of witnesses. They wanted a district court, and that was subsequently affirmed by the Fifth Secret Court of Appeals, which is itself a pretty conservative court. The question happens what to do next, how to redraw the map. The plaintiffs had a map that they liked which would have created that second black majority district, but the usual rules to allow the legislature to crack at it and to see if they can do it in time. Otherwise a court will create a map. So this went to the Louisiana legislature and the governor said, we need to do a map. We would have liked to fight this case more, but we've already lost twice in the district court, in the Court if Appeals. We need to write our own map rather than having a court impostmon on us. When the legislatures sat down to draw a map, though, they had a problem because it's a Republican majority legislature, Republican governor Publican delegation and several of the Republican members of Congress, and Louisiana are very powerful, including the Speaker of the House, the majority leader, and somebody else they really liked, and so they decided the legislature in Louisiana that they would sacrifice one Republican district, but not the district that made sense in terms of the plaintiff's original lawsuit seeking a black majority district. They kind of cobbled together a new district that stretched across the state and got rid of a different white Republican congressman in order to preserve the districts of the Speaker, the majority leader, and a member of Congress who they favored. So this news district is a black majority district that comes out of this lawsuit. Now, some white plaintiffs have sued claiming that this district is unconstitutional because it's unconstitutionally race based, that is a racial gerrymander, that the decision to draw this district was primarily based on race, and the Supreme Court has for some time said that that's unconstitutional. The state is defending it, as are the original plaintiffs, the black voters, on the grounds that no it's not racially predominant. It's really politically predominant. The reason this district has this odd shape is not really because of race, but because the legislature wanted to basically protect Republican incumbents, and a different lower court than the one that heard the original case said, no, this is racial predominance. The only reason this district exists is to create a black majority district. And that's the argument before the Supreme Court, and it's a kind of an odd one. Supreme Court has said in the past that if something is drawn primarily to the basis of race and there's no other justification for it, then it may be constitutional the ncal protection clause. But if it's done primarily for party, that's parties in germymandering, and you can challenge that. And the question of whether something is based on race or on party has really been before the Court several times. But that's kind of what they have to decide here. Is this district primarily based on partisanship because that's why the legislature drew it the way they did it, Or is it based on race because they wouldn't have been drawing a new district at all but for the earlier judgment that Louisiana needed a second black majority district.

What use of race in drawing maps is permissible?

What use of race in drawing maps is permissible?

You can use it in the remedial sense. I mean, obviously you couldn't remedy Voting Rights Act violations unless you took race into account in drawing the remedy. But the question is sort of when does race too much? That's that's where the Court has settled out over the less several decades. You can't ignore race, and sometimes you have to take race into account. But if you give race too much attention they use the notion of predominance, then unless it's just a by something else like the Voting Rights Act, then it violates ecal protection clause.

You can use it in the remedial sense. I mean, obviously you couldn't remedy Voting Rights Act violations unless you took race into account in drawing the remedy. But the question is sort of when does race too much? That's that's where the Court has settled out over the less several decades. You can't ignore race, and sometimes you have to take race into account. But if you give race too much attention they use the notion of predominance, then unless it's just a by something else like the Voting Rights Act, then it violates ecal protection clause.

There's a tension between the Court's precedent in those two areas.

There's a tension between the Court's precedent in those two areas.

In a sense, I mean, the Court has said you can use race, you just can't use it too much. The justification for using race is to remedy another violation, like a Voting Rights Act violation. If a court concludes that the state's distresting pattern discriminates the based on race or has a racially disparate impact, which is what happened in this case, then redistricting is based on some attention to race. The concern in the plaintiff's claim. In this case, the white plaintiffs are the district that they true kind of stretches across the state, and what it does is it picks up pockets of black population in different parts of the state to create a black majority district, and that makes it look like a racial gerrymander. The state's defense, as well as the defense by the original voting rights plaintiffs, is well, the reason that stretches across the state is really for partisan purposes, because we didn't want to put it in the area that the black plaintiffs originally wanted because that would have gotten rid of an incumbent that we like. So we did it this way to get rid of an incumbent we didn't care about so much. And the voting rights plaintiffs also point out that much of the district does include much of the district that they had originally proposed, but it is true it is the kind of district that does stretch across the state in a way that has often drawn criticism.

In a sense, I mean, the Court has said you can use race, you just can't use it too much. The justification for using race is to remedy another violation, like a Voting Rights Act violation. If a court concludes that the state's distresting pattern discriminates the based on race or has a racially disparate impact, which is what happened in this case, then redistricting is based on some attention to race. The concern in the plaintiff's claim. In this case, the white plaintiffs are the district that they true kind of stretches across the state, and what it does is it picks up pockets of black population in different parts of the state to create a black majority district, and that makes it look like a racial gerrymander. The state's defense, as well as the defense by the original voting rights plaintiffs, is well, the reason that stretches across the state is really for partisan purposes, because we didn't want to put it in the area that the black plaintiffs originally wanted because that would have gotten rid of an incumbent that we like. So we did it this way to get rid of an incumbent we didn't care about so much. And the voting rights plaintiffs also point out that much of the district does include much of the district that they had originally proposed, but it is true it is the kind of district that does stretch across the state in a way that has often drawn criticism.

Did you hear a divide between the conservative justices and the liberal justices on the use of race in this case.

Did you hear a divide between the conservative justices and the liberal justices on the use of race in this case.

Well, I think the conservative justices, who I think were yes, they are troubled by it. I think they were slightly frustrated by the fact that the state, to the Louisiana Conservative Republican lad state, is defending the map, and the state basically kept making the point the reason we did this is because we had a judgment against us, and I think some of the conservatives maybe kind of wondered, you know, maybe you should have challenged that, do you agree with that judgment against you? And of course the state's position is no, we don't agree with the judgment against us, but we lost twice and we didn't want the courts to impose a map on us. So I think the Conservatives were somewhat frustrated in this case because they're not directly reviewing the original lower court case that said Louisiana violated the Voting Rights Act. They never took that case. What they're reviewing is the state's remedy, in which, although it's clear that race plays an important role in their redoing the map altogether, I think the states argument was that this particular configuration reflects our political judgment that if we had to sacrifice one white Republican congressman. We chose Congressman X and not Congresswoman Y.

Well, I think the conservative justices, who I think were yes, they are troubled by it. I think they were slightly frustrated by the fact that the state, to the Louisiana Conservative Republican lad state, is defending the map, and the state basically kept making the point the reason we did this is because we had a judgment against us, and I think some of the conservatives maybe kind of wondered, you know, maybe you should have challenged that, do you agree with that judgment against you? And of course the state's position is no, we don't agree with the judgment against us, but we lost twice and we didn't want the courts to impose a map on us. So I think the Conservatives were somewhat frustrated in this case because they're not directly reviewing the original lower court case that said Louisiana violated the Voting Rights Act. They never took that case. What they're reviewing is the state's remedy, in which, although it's clear that race plays an important role in their redoing the map altogether, I think the states argument was that this particular configuration reflects our political judgment that if we had to sacrifice one white Republican congressman. We chose Congressman X and not Congresswoman Y.

There's been a lot of talk lately about the standoff between the Trump administration and the courts and the question of whether the Trump administration is actually following complying with court orders. Did you see subtle references to that during the oral arguments? You had the Louisiana Solicitor General saying right, we're in the business of complying with federal court decisions, and Justice Jackson clarifying with him later that the court order was the reason why Louisiana drew up the map, and it didn't matter whether the order was right or wrong.

There's been a lot of talk lately about the standoff between the Trump administration and the courts and the question of whether the Trump administration is actually following complying with court orders. Did you see subtle references to that during the oral arguments? You had the Louisiana Solicitor General saying right, we're in the business of complying with federal court decisions, and Justice Jackson clarifying with him later that the court order was the reason why Louisiana drew up the map, and it didn't matter whether the order was right or wrong.

There's no dispute that the court's order was the reason that Louisiana did this.

There's no dispute that the court's order was the reason that Louisiana did this.

Did the new map right? Mister Grime can correct me for wrong, but I don't think so, Your honor.

Did the new map right? Mister Grime can correct me for wrong, but I don't think so, Your honor.

And the question is whether or not the fact that you had a court order was good enough reason for you to do it. Is that what you understand the basic question.

And the question is whether or not the fact that you had a court order was good enough reason for you to do it. Is that what you understand the basic question.

To be that's correct, not just one order but two layers of orders.

To be that's correct, not just one order but two layers of orders.

Yes, Your Honor, and I guess I'm still a little confused as to why it matters whether the court order was right or not. You were still being compelled by the court to do what you did in this case.

Yes, Your Honor, and I guess I'm still a little confused as to why it matters whether the court order was right or not. You were still being compelled by the court to do what you did in this case.

Correct, that's correct, Justice Jackson.

Correct, that's correct, Justice Jackson.

That was my impression as well that the Slicter General was being very good about saying, we follow court orders. We lost once, we took an appeal, and then we follow the court orders. And some of the justices were pressing him, well, what if it was completely wrong? You know, would you follow it if it was completely wrong, and he was saying, you know, we're not going to get in the judgment of deciding whether it's completely wrong. We didn't like it. We defended our position, we thought we were right, we took an appeal, we thought we right an appeal, we lost the appeal, and I think our solution was, instead of keeping fighting, we want to be able to control our own map.

That was my impression as well that the Slicter General was being very good about saying, we follow court orders. We lost once, we took an appeal, and then we follow the court orders. And some of the justices were pressing him, well, what if it was completely wrong? You know, would you follow it if it was completely wrong, and he was saying, you know, we're not going to get in the judgment of deciding whether it's completely wrong. We didn't like it. We defended our position, we thought we were right, we took an appeal, we thought we right an appeal, we lost the appeal, and I think our solution was, instead of keeping fighting, we want to be able to control our own map.

Coming up next on the Bloomberg Law Show, I'll continue this conversation with Columbia Law School professor Richard Breflt. We'll take a look at how the justices might rule. I'm June Grosso. When you're listening to Bloomberg, the Supreme Court justices displayed a deep divide over the use of race and redistricting in a case involving Louisiana's congressional map that created a second majority black voting district. At issue is the new district drawn by Republicans, which runs a jagged course over two hundred and fifty miles from Shreveport to Baton Rouge. Louisiana Solicitor General Ben Aguinyaga said the state was simply abiding by a court decision and was entitled to flexibility in doing so as it tried to ward off the prospect of a court imposed map. His arguments seemed to resonate with much of the Court, including Justice Amy Coney Barrett.

Coming up next on the Bloomberg Law Show, I'll continue this conversation with Columbia Law School professor Richard Breflt. We'll take a look at how the justices might rule. I'm June Grosso. When you're listening to Bloomberg, the Supreme Court justices displayed a deep divide over the use of race and redistricting in a case involving Louisiana's congressional map that created a second majority black voting district. At issue is the new district drawn by Republicans, which runs a jagged course over two hundred and fifty miles from Shreveport to Baton Rouge. Louisiana Solicitor General Ben Aguinyaga said the state was simply abiding by a court decision and was entitled to flexibility in doing so as it tried to ward off the prospect of a court imposed map. His arguments seemed to resonate with much of the Court, including Justice Amy Coney Barrett.

I mean, is it also because of the position that it puts the state in here? I mean, it's not just a matter of your obedience to the federal court order, which I appreciate. You know you would be obedient to the federal court order. But it's also that if you had continued to litigate the Robinson, if you had continued to litigate in Robinson, you risked having the court imposed map. And so it's really litigation risk that's part of the calculus here.

I mean, is it also because of the position that it puts the state in here? I mean, it's not just a matter of your obedience to the federal court order, which I appreciate. You know you would be obedient to the federal court order. But it's also that if you had continued to litigate the Robinson, if you had continued to litigate in Robinson, you risked having the court imposed map. And so it's really litigation risk that's part of the calculus here.

I've been talking to Professor Richard Rfald of Columbia Law School, Rich, do you have any inkling for what the Court might do here?

I've been talking to Professor Richard Rfald of Columbia Law School, Rich, do you have any inkling for what the Court might do here?

Well, first off, never predict the Supreme Court, but I think there seemed to be enough understanding of this by at least some of the justices that you might say that justice is in the middle, like Cavanaugh and Barrett, of the tight squeeze that the state was in, and the idea that the state should have some space, some discretion to accommodate a court and also to accommodate its own political preferences. I mean, of course a Gelito and Thomas were clearly very unhappy with this map. Robert said very little as far as I could tell, and I think maybe I'm overreading it, and you never know with them, but I think there was some sympathy I think I saw in Barrett and Cavanaugh for the situation that the state was in. You have the impression from the very conservative justices and even from some of the justices in the middle, that they may be looking to rethink the Voting Rights Act and rethink how much attention race should be given in districting. But my impression is at least for some of the justices may be realizing that this is not the vehicle for that because given the state's defenses so heavily based on partisan considerations, which I think they were pretty good at showing were real and not pretend.

Well, first off, never predict the Supreme Court, but I think there seemed to be enough understanding of this by at least some of the justices that you might say that justice is in the middle, like Cavanaugh and Barrett, of the tight squeeze that the state was in, and the idea that the state should have some space, some discretion to accommodate a court and also to accommodate its own political preferences. I mean, of course a Gelito and Thomas were clearly very unhappy with this map. Robert said very little as far as I could tell, and I think maybe I'm overreading it, and you never know with them, but I think there was some sympathy I think I saw in Barrett and Cavanaugh for the situation that the state was in. You have the impression from the very conservative justices and even from some of the justices in the middle, that they may be looking to rethink the Voting Rights Act and rethink how much attention race should be given in districting. But my impression is at least for some of the justices may be realizing that this is not the vehicle for that because given the state's defenses so heavily based on partisan considerations, which I think they were pretty good at showing were real and not pretend.

Just tell us a little bit about how the Supreme Court has sort of been chipping away at the power of the Voting Rights Act.

Just tell us a little bit about how the Supreme Court has sort of been chipping away at the power of the Voting Rights Act.

Well, I mean candidly. The one case that's most relevant is the case that they didn't the Alabama redistrict in case Milligan, which was decided two years ago, and this case follows immediately on it, whereby a five to four vote, they actually upheld a lower court judgment that the Alabama congressional district being planned had a racially disparate impact and that it denied fair representation to black voters in Alabama and required the creation of a second black majority district in Alabama. It was that case that I think the lower courts relied on in the earlier version the first round of this case to find that Louisiana was in violation of the Voting Right Sect and maybe why the US Supreme Court didn't take the Louisiana cases. They had just decided the Alabama case that was a five to four case and It was a bit of a surprise because they previously issued a stay against the lower court order in that case, so that he allowed the old map to be used one more election. So I think, you know it's in other areas. The Court has certainly cut back. They have made it now almost impossible for plaintiffs to bring voting rightsack claims, challenging various mechanisms like voter ID and issues that make it harder for people with a claim. Is that certain you know, voter registration and voter ID rules that just spread impact on black or other minority voters that to court in the case called Bernovich some years ago threw that out. Now more than ten years ago, they got rid of Section five, which was the preclearance requirement, which was probably the most importan short and piece of the Voting Rights Act, requiring certain states which had a very bad track record of racial discrimination to get their voting law changes preclued by the Department of Justice. Now about ten years ago, and they've been sending signals at least a number of justices that they are troubled by the reader which the Voting Rights Act is being used to challenge voting laws, voting rules and things like districting plans. But right now, the most recent case, that Alabama case, is one where they actually are continuing to enforce it. Some people are seeing this as another challenge. I think if the Court is going to start cutting back on the role of Section two of the Voting Rights Act in challenging districting plans, I'll go out on a limb and say this is probably not the case, but you could imagine it happening in the not too distant future.

Well, I mean candidly. The one case that's most relevant is the case that they didn't the Alabama redistrict in case Milligan, which was decided two years ago, and this case follows immediately on it, whereby a five to four vote, they actually upheld a lower court judgment that the Alabama congressional district being planned had a racially disparate impact and that it denied fair representation to black voters in Alabama and required the creation of a second black majority district in Alabama. It was that case that I think the lower courts relied on in the earlier version the first round of this case to find that Louisiana was in violation of the Voting Right Sect and maybe why the US Supreme Court didn't take the Louisiana cases. They had just decided the Alabama case that was a five to four case and It was a bit of a surprise because they previously issued a stay against the lower court order in that case, so that he allowed the old map to be used one more election. So I think, you know it's in other areas. The Court has certainly cut back. They have made it now almost impossible for plaintiffs to bring voting rightsack claims, challenging various mechanisms like voter ID and issues that make it harder for people with a claim. Is that certain you know, voter registration and voter ID rules that just spread impact on black or other minority voters that to court in the case called Bernovich some years ago threw that out. Now more than ten years ago, they got rid of Section five, which was the preclearance requirement, which was probably the most importan short and piece of the Voting Rights Act, requiring certain states which had a very bad track record of racial discrimination to get their voting law changes preclued by the Department of Justice. Now about ten years ago, and they've been sending signals at least a number of justices that they are troubled by the reader which the Voting Rights Act is being used to challenge voting laws, voting rules and things like districting plans. But right now, the most recent case, that Alabama case, is one where they actually are continuing to enforce it. Some people are seeing this as another challenge. I think if the Court is going to start cutting back on the role of Section two of the Voting Rights Act in challenging districting plans, I'll go out on a limb and say this is probably not the case, but you could imagine it happening in the not too distant future.

I mean, you were surprised by that Alabama case. I was stunned, and I'm wondering if it's an exception rather than the rule, because it sort of stood out right.

I mean, you were surprised by that Alabama case. I was stunned, and I'm wondering if it's an exception rather than the rule, because it sort of stood out right.

But this case is an immediate follow on, and it's not even this case. It's the case that this case builds on. The thing is this case is not a direct review of that case. In some ways, it is arguably an indirect review of that case. But the Louisiana case basically saying that Louisiana needs to create a second black majority district was very, very similar to the Alabama case. So it would be a real stretch, I think, to say that the district is racially predominant when the state was acting because of a court order, and the factors that led to this particular district design were clearly political, or at least to some degree political. I mean, there was an interesting bit of a dialogue between Justice Cavanon one of the advocates about, you know, how do you decide whether something is racially predominant or politically predominant? Is it fifty to fifty? Is a sixty forty is a seventy thirty? And this Lister General for Louisiana saying we think this is about seventy percent political, and that if it's in the sixty eighty percent political aught to be seen as politically predominant and not racially predominant. There was an interesting effort how do they decide?

But this case is an immediate follow on, and it's not even this case. It's the case that this case builds on. The thing is this case is not a direct review of that case. In some ways, it is arguably an indirect review of that case. But the Louisiana case basically saying that Louisiana needs to create a second black majority district was very, very similar to the Alabama case. So it would be a real stretch, I think, to say that the district is racially predominant when the state was acting because of a court order, and the factors that led to this particular district design were clearly political, or at least to some degree political. I mean, there was an interesting bit of a dialogue between Justice Cavanon one of the advocates about, you know, how do you decide whether something is racially predominant or politically predominant? Is it fifty to fifty? Is a sixty forty is a seventy thirty? And this Lister General for Louisiana saying we think this is about seventy percent political, and that if it's in the sixty eighty percent political aught to be seen as politically predominant and not racially predominant. There was an interesting effort how do they decide?

Let's listen to part of that exchange.

Let's listen to part of that exchange.

So the rule I think you one is political considerations are fine to take into account and doing the map the second map in fifties kind of floor on that.

So the rule I think you one is political considerations are fine to take into account and doing the map the second map in fifties kind of floor on that.

I think. So, I mean, this court has never spelled out what substantially addresses means as a numerical matter, and to my mind, if I'm between sixteen and eighty percent, I think that's substantial. But obviously a judgment call for.

I think. So, I mean, this court has never spelled out what substantially addresses means as a numerical matter, and to my mind, if I'm between sixteen and eighty percent, I think that's substantial. But obviously a judgment call for.

This court, and it struck me that the Social General Louisiana did a very good job of basically saying, all we're doing is trying to abide by a court order in a way that satisfies our internal political needs.

This court, and it struck me that the Social General Louisiana did a very good job of basically saying, all we're doing is trying to abide by a court order in a way that satisfies our internal political needs.

In light of that, would their decision have any impact on future cases.

In light of that, would their decision have any impact on future cases.

Since it's not a direct review of that Louisiana case, I don't know. I mean, I think in some ways it ratifies the idea that it's consistent with the earlier the Routsho case, which is that partisan jury maner is just fine. It follows on that. I mean, in some ways this is an odd partisan jury manner because it wasn't Republican on democratic, Republican on Republican one way or the other. A republican district was going to go. But so you could maybe instead of saying partisan jury manner, you're called political gerrymandering. But this is clearly a case where political forces were very important and leading to in somewhat oddly shaped district. I mean, the trick in the case is presumably if the plaintiffs have come forward with this district, they may very well have lost, because this is not the kind of compact district that respects political subdivision or you know, local community lines that the court likes, but the plaintiffs didn't come forward with this district. The oddity of this case is the plaintiffs were able to show the district court in the first case that you could create a very straight, very compact district that respected community lines and subdivision lines better than the state's original plan and create that as a black majority district. That persuaded the district court. But then when the state went and okay to do the remedy, they came up with a completely different district. Now that's not the plaintiff's fault. The plaintiffs are still defending what they did because they say, well, we still get a lot in this It's still seventy percent of our original district is in this district, but you know, it's not the one that the plaintiffs had asked for.

Since it's not a direct review of that Louisiana case, I don't know. I mean, I think in some ways it ratifies the idea that it's consistent with the earlier the Routsho case, which is that partisan jury maner is just fine. It follows on that. I mean, in some ways this is an odd partisan jury manner because it wasn't Republican on democratic, Republican on Republican one way or the other. A republican district was going to go. But so you could maybe instead of saying partisan jury manner, you're called political gerrymandering. But this is clearly a case where political forces were very important and leading to in somewhat oddly shaped district. I mean, the trick in the case is presumably if the plaintiffs have come forward with this district, they may very well have lost, because this is not the kind of compact district that respects political subdivision or you know, local community lines that the court likes, but the plaintiffs didn't come forward with this district. The oddity of this case is the plaintiffs were able to show the district court in the first case that you could create a very straight, very compact district that respected community lines and subdivision lines better than the state's original plan and create that as a black majority district. That persuaded the district court. But then when the state went and okay to do the remedy, they came up with a completely different district. Now that's not the plaintiff's fault. The plaintiffs are still defending what they did because they say, well, we still get a lot in this It's still seventy percent of our original district is in this district, but you know, it's not the one that the plaintiffs had asked for.

And will the court's decision here have any effect on the congressional map in the midterms.

And will the court's decision here have any effect on the congressional map in the midterms.

Well, I think this district is already in place, so in some ways, the Democrats picked up one seat in Louisiana because I think this map was used in twenty twenty four so if it's reversed, then there's a likely Republican pickup of one in Louisiana depends. But so I think it's already had a one seat partisan effect, as the Alabama redistricting did.

Well, I think this district is already in place, so in some ways, the Democrats picked up one seat in Louisiana because I think this map was used in twenty twenty four so if it's reversed, then there's a likely Republican pickup of one in Louisiana depends. But so I think it's already had a one seat partisan effect, as the Alabama redistricting did.

So the federal government. Where did the Trump administration stand on this?

So the federal government. Where did the Trump administration stand on this?

They remove themselves from it. Your Biden administration was defending the map. The Trump administration, I think, in the end, didn't take a position.

They remove themselves from it. Your Biden administration was defending the map. The Trump administration, I think, in the end, didn't take a position.

I have to say this is a very confusing, perhaps because of the complex procedural history, perhaps because the state seems to be in an odd position.

I have to say this is a very confusing, perhaps because of the complex procedural history, perhaps because the state seems to be in an odd position.

This is a very odd case, and so I think this is one that may not have a lot of law. I mean, well, if the lower court is reversed and the state's map is sustained, because what happened in this case is the lower court in the second set of litigation said no, this map is an unconstitutional racial jerry manner. If the lower court is reversed, then I don't think there'll be much a significance. The lower court is sustained, then I think it's going to be very weird, because then it means that at anytime racist the factor at all becomes a problem, and so it's again almost impossible to read the Supreme Corporate but at least based on the way the questioning went by, at least by Barrett and maybe Kavanaugh, they seem to sort of realize that the state was between a rock and a hard place and they might be inclined to just leave it alone.

This is a very odd case, and so I think this is one that may not have a lot of law. I mean, well, if the lower court is reversed and the state's map is sustained, because what happened in this case is the lower court in the second set of litigation said no, this map is an unconstitutional racial jerry manner. If the lower court is reversed, then I don't think there'll be much a significance. The lower court is sustained, then I think it's going to be very weird, because then it means that at anytime racist the factor at all becomes a problem, and so it's again almost impossible to read the Supreme Corporate but at least based on the way the questioning went by, at least by Barrett and maybe Kavanaugh, they seem to sort of realize that the state was between a rock and a hard place and they might be inclined to just leave it alone.

And the Solicitor General was really strong and pointed out over and over again that Louisiana was complying with the court order.

And the Solicitor General was really strong and pointed out over and over again that Louisiana was complying with the court order.

You know, if the state had just created this district to create a black majority district, they would be Shawvy Rain and it would be thrown out. But you know, they did it because a court forced them to create a district, not just the Department of Justice, which was going on in shawl which was because then it was a preclearance, but a court said you have to create a district, but we're going to let you decide where it is. And it's it's so hard to say that this was more race than party or more race than politics. They should say politics, and the court has said politics can be a factor, and they threw out the challenges to parties and jerrymandering.

You know, if the state had just created this district to create a black majority district, they would be Shawvy Rain and it would be thrown out. But you know, they did it because a court forced them to create a district, not just the Department of Justice, which was going on in shawl which was because then it was a preclearance, but a court said you have to create a district, but we're going to let you decide where it is. And it's it's so hard to say that this was more race than party or more race than politics. They should say politics, and the court has said politics can be a factor, and they threw out the challenges to parties and jerrymandering.

So as in so many other cases, it seems like the decision will depend on the justice is in the middle. Thanks so much, rich that's Professor Richard Rfault of Columbia Law School. The Trump administration is escalating the legal battle over the deportation of alleged Venezuelan gang members. The government is refusing to hand over flight data requested by federal Judge James Boseberg, now citing state secrets and national secure risks. At the same time, a three judge appellate panel is weighing whether to continue blocking Trump's invocation of the Alien Enemies Act to fly the reputed gang members to a Salvadorian prison. Joining me Is Bloomberg legal reporter David Voriakis. For ten days, Judge Bosburg has been trying to get this information about the two flights, and now the Trump administration is refusing to hand it over because of national security reasons state secrets.

So as in so many other cases, it seems like the decision will depend on the justice is in the middle. Thanks so much, rich that's Professor Richard Rfault of Columbia Law School. The Trump administration is escalating the legal battle over the deportation of alleged Venezuelan gang members. The government is refusing to hand over flight data requested by federal Judge James Boseberg, now citing state secrets and national secure risks. At the same time, a three judge appellate panel is weighing whether to continue blocking Trump's invocation of the Alien Enemies Act to fly the reputed gang members to a Salvadorian prison. Joining me Is Bloomberg legal reporter David Voriakis. For ten days, Judge Bosburg has been trying to get this information about the two flights, and now the Trump administration is refusing to hand it over because of national security reasons state secrets.

The Justice Department says that by handing over the information that Judge Bosburg is seeking on these two flights to Venezuela in March fifteenth, that that would compromise national security and foreign policy, and in a filing late Monday night, they said essentially that they are exercising the state secrets privilege, and they would not give the information to Judge Bosburg even under seal or in his chambers.

The Justice Department says that by handing over the information that Judge Bosburg is seeking on these two flights to Venezuela in March fifteenth, that that would compromise national security and foreign policy, and in a filing late Monday night, they said essentially that they are exercising the state secrets privilege, and they would not give the information to Judge Bosburg even under seal or in his chambers.

Judge Boseburg was formerly the presiding judge of the National Security Surveillance Court, so he's been there before.

Judge Boseburg was formerly the presiding judge of the National Security Surveillance Court, so he's been there before.

He has a lot of experience in handling national security secrets, and he knows what he's doing. So he actually in an earlier filing said, are you going to invoke the state's secrets privilege? And if so, police state the reason why, which is essentially what the government did last night.

He has a lot of experience in handling national security secrets, and he knows what he's doing. So he actually in an earlier filing said, are you going to invoke the state's secrets privilege? And if so, police state the reason why, which is essentially what the government did last night.

Just to be clear, these are flights that have taken off and landed, and there has been reporting by a couple of news organizations tracking down what times they actually took off and landed, right, But.

Just to be clear, these are flights that have taken off and landed, and there has been reporting by a couple of news organizations tracking down what times they actually took off and landed, right, But.

The judge actually wants the government to state it to him directly. When did the flights leave, where did they leave from, where did they land, how many people were aboard? Seems like pretty basic information. But the government's position that is that if they were to disclae that, even under seal to the judge, that it would reveal secrets that would, as they say, directly compromise the safety of American officers, contractors, aliens, and the American public on the one hand, and on the other that it would reveal non public, sensitive and high stakes negotiations with foreign governments.

The judge actually wants the government to state it to him directly. When did the flights leave, where did they leave from, where did they land, how many people were aboard? Seems like pretty basic information. But the government's position that is that if they were to disclae that, even under seal to the judge, that it would reveal secrets that would, as they say, directly compromise the safety of American officers, contractors, aliens, and the American public on the one hand, and on the other that it would reveal non public, sensitive and high stakes negotiations with foreign governments.

It would also reveal whether or not they disobeyed his order. I mean, that's what he's looking for here. When did they leave? Was it after I gave the oral order? Was it after I gave the written order?

It would also reveal whether or not they disobeyed his order. I mean, that's what he's looking for here. When did they leave? Was it after I gave the oral order? Was it after I gave the written order?

Correct? Just to be clear. On Saturday afternoon of March fifteenth, he had a hearing in which he directed the government to make sure that any planes that were in the air had to turn around and return to the United States. He did that orally, and maybe a half hour later he issued a written order that did not include that directive. And the government's taken the position while it wasn't in the written order, So we don't need to obey that, and we would only follow what's in the written order, not your oral order.

Correct? Just to be clear. On Saturday afternoon of March fifteenth, he had a hearing in which he directed the government to make sure that any planes that were in the air had to turn around and return to the United States. He did that orally, and maybe a half hour later he issued a written order that did not include that directive. And the government's taken the position while it wasn't in the written order, So we don't need to obey that, and we would only follow what's in the written order, not your oral order.

He has said that he wants the Venezuelan plaintiffs to be able to have due process.

He has said that he wants the Venezuelan plaintiffs to be able to have due process.

Correct. I don't think that he believes he has jurisdiction over the people who already have been flown to El Salvador. But there's something like two hundred and fifty other people who are potentially subject to the Trump proclamation that says that if they're members of this Venezuelan gang, that they are subject to immediate deportation under the Alien Enemies Act of seventeen.

Correct. I don't think that he believes he has jurisdiction over the people who already have been flown to El Salvador. But there's something like two hundred and fifty other people who are potentially subject to the Trump proclamation that says that if they're members of this Venezuelan gang, that they are subject to immediate deportation under the Alien Enemies Act of seventeen.

Ninety eight, and no one has yet ruled. No court has yet ruled on whether Trump's invoking the Alien Enemies Act, which has only been used three times always in wartime. No court has actually ruled on whether that is legal or not.

Ninety eight, and no one has yet ruled. No court has yet ruled on whether Trump's invoking the Alien Enemies Act, which has only been used three times always in wartime. No court has actually ruled on whether that is legal or not.

They have not ruled on the merits of the objection to the use of the Alien Enemies Act in this context, being that the United States has not declared war against another nation, which is how it had been previously used in US history.

They have not ruled on the merits of the objection to the use of the Alien Enemies Act in this context, being that the United States has not declared war against another nation, which is how it had been previously used in US history.

So now let's turn to the next level of court, which is the DC Appellate Court. There was an oral argument there yesterday in this same case.

So now let's turn to the next level of court, which is the DC Appellate Court. There was an oral argument there yesterday in this same case.

Well, the basics of the argument were, did Judge Bosburg properly exercise his authority in putting a pause on this order to deport these alleged Venezuelan gang members. There was a Trump appointed judge who had serious problems with what Judge Bosburg had done and believed that the case should be moved to Texas so that individuals could litigate their own case through what's known as a habeas corpus petition, and there was a Democratic appointed judge who felt that the government's position was quite deficient. There's a third judge who did not express an opinion, and so it's a three judge panel. It's hard to know at this moment just how it will go, but it seems pretty clear that this case is headed for the Supreme Court.

Well, the basics of the argument were, did Judge Bosburg properly exercise his authority in putting a pause on this order to deport these alleged Venezuelan gang members. There was a Trump appointed judge who had serious problems with what Judge Bosburg had done and believed that the case should be moved to Texas so that individuals could litigate their own case through what's known as a habeas corpus petition, and there was a Democratic appointed judge who felt that the government's position was quite deficient. There's a third judge who did not express an opinion, and so it's a three judge panel. It's hard to know at this moment just how it will go, but it seems pretty clear that this case is headed for the Supreme Court.

And so one of the judges, the Democratic appointee, Patricia Millett, said that Nazis got better treatment under the Alien Enemies Act or in World War Two than these Venezuelans because they were deported without any due process right.

And so one of the judges, the Democratic appointee, Patricia Millett, said that Nazis got better treatment under the Alien Enemies Act or in World War Two than these Venezuelans because they were deported without any due process right.

There was a procedure for deporting Nazis at that point. There were panels that were set up in this case. The Trump proclamation was publicly announced maybe an hour or two before the planes took off. That's what it appears from the available public evidence, and so they had no real chance to challenge it. The litigation that we're talking about arose because the ACLU and another group filed preemptively because they had heard that Trump might invoke the Alien Enemies Act and they wanted to foreclose the possibility that it would be used against five plaintiffs, and in fact, Judge Bosberg granted a temporary restraining order with respect to those five plaintiffs, and then he granted class action certification for everyone else who might be affected by that order.

There was a procedure for deporting Nazis at that point. There were panels that were set up in this case. The Trump proclamation was publicly announced maybe an hour or two before the planes took off. That's what it appears from the available public evidence, and so they had no real chance to challenge it. The litigation that we're talking about arose because the ACLU and another group filed preemptively because they had heard that Trump might invoke the Alien Enemies Act and they wanted to foreclose the possibility that it would be used against five plaintiffs, and in fact, Judge Bosberg granted a temporary restraining order with respect to those five plaintiffs, and then he granted class action certification for everyone else who might be affected by that order.

All right, So let's turn down to a totally different topic, the trial of Bob Menendez's wife. Is it basically the same case, same witnesses, same evidence.

All right, So let's turn down to a totally different topic, the trial of Bob Menendez's wife. Is it basically the same case, same witnesses, same evidence.

Nadine Menendez went on trial yesterday with opening statements in federal court in New York. It's essentially the same case that led to the conviction of her husband, the New Jersey Democrat who used to be the powerful chairman of the Senate Foreign Relations Committee. The case that the prosecutors laid out in the roadmap for the jury was that she acted as a go between between her husband and three corrupt businessmen that were seeking favors as well as the Egyptian government, and that in a raid on the house that the couple shared in Englewood Cliffs, New Jersey, the FBI found thirteen gold bars, a black Mercedes Benz convertible, and more than four hundred thousand dollars in cash. Nearly five hundred.

Nadine Menendez went on trial yesterday with opening statements in federal court in New York. It's essentially the same case that led to the conviction of her husband, the New Jersey Democrat who used to be the powerful chairman of the Senate Foreign Relations Committee. The case that the prosecutors laid out in the roadmap for the jury was that she acted as a go between between her husband and three corrupt businessmen that were seeking favors as well as the Egyptian government, and that in a raid on the house that the couple shared in Englewood Cliffs, New Jersey, the FBI found thirteen gold bars, a black Mercedes Benz convertible, and more than four hundred thousand dollars in cash. Nearly five hundred.

Thousand so Is the defense going to be that she didn't know or intend to violate the laws?

Thousand so Is the defense going to be that she didn't know or intend to violate the laws?

Her defense attorney's opening statement was that essentially, she did not have the knowledge and intent of the crimes that's necessary to convict her of all the counts against her, which includes bribery, conspiracy, fraud, extortion, and obstruction of justice.

Her defense attorney's opening statement was that essentially, she did not have the knowledge and intent of the crimes that's necessary to convict her of all the counts against her, which includes bribery, conspiracy, fraud, extortion, and obstruction of justice.

So her husband blamed her. Is she going to blame her husband.

So her husband blamed her. Is she going to blame her husband.

That's not clear yet. But her husband essentially said at trial that she received a lot of cash and gold bars without his knowledge from these businessmen who she had known a lot longer than he had, and so they had a prior relationship and Bob was unaware of that and became aware of that as time went on. And Bob Menendez also argued that he was unaware of the extent of her financial problems, which complicated her life and led her to need a new Mercedes Benz and other considerations.

That's not clear yet. But her husband essentially said at trial that she received a lot of cash and gold bars without his knowledge from these businessmen who she had known a lot longer than he had, and so they had a prior relationship and Bob was unaware of that and became aware of that as time went on. And Bob Menendez also argued that he was unaware of the extent of her financial problems, which complicated her life and led her to need a new Mercedes Benz and other considerations.

So Joseribe, who testified against Menandez, is going to testify against her.

So Joseribe, who testified against Menandez, is going to testify against her.

Uribe is going to testify. He is going to say, I would expect that he gave Nadine Menendez fifteen thousand dollars in cash in the parking lot of a New Jersey restaurant so that she could buy a Mercedes Benz and that he made monthly payments on the car for something like three years. In exchange. The Senator made a call and had a meeting with the Attorney General of New Jersey at the time, trying to suggest that the New Jersey Attorney General should drop the criminal investigation of two people who were close to Uribe.

Uribe is going to testify. He is going to say, I would expect that he gave Nadine Menendez fifteen thousand dollars in cash in the parking lot of a New Jersey restaurant so that she could buy a Mercedes Benz and that he made monthly payments on the car for something like three years. In exchange. The Senator made a call and had a meeting with the Attorney General of New Jersey at the time, trying to suggest that the New Jersey Attorney General should drop the criminal investigation of two people who were close to Uribe.

So just because he was convicted, it doesn't mean that she'll be convicted.

So just because he was convicted, it doesn't mean that she'll be convicted.

Right, It's a conspiracy case, and now several of the conspirators have been convicted three a trial and won by guilty plea, But that doesn't necessarily mean that she's guilty. The government's theory is that she was critical to the conspiracy because she made key introductions between her first boyfriend now husband, Bob Menendez, and the three people who bribed her, and that she actually received the bribes.

Right, It's a conspiracy case, and now several of the conspirators have been convicted three a trial and won by guilty plea, But that doesn't necessarily mean that she's guilty. The government's theory is that she was critical to the conspiracy because she made key introductions between her first boyfriend now husband, Bob Menendez, and the three people who bribed her, and that she actually received the bribes.

Now, Bob Menendez at this point is angling for a pardon from Trump.

Now, Bob Menendez at this point is angling for a pardon from Trump.

We have reported that he is pursuing a pardon. He's been a Democrat his entire career and has been quite critical of Trump through much of his career. He has started to echo some of Trump's language in his statements about how he was the victim of a witch hunt and prosecutors who went out of their way to persecute him without good cause.

We have reported that he is pursuing a pardon. He's been a Democrat his entire career and has been quite critical of Trump through much of his career. He has started to echo some of Trump's language in his statements about how he was the victim of a witch hunt and prosecutors who went out of their way to persecute him without good cause.

At this point, he's blaming the government for putting her on trial when she's recovering from cancer.

At this point, he's blaming the government for putting her on trial when she's recovering from cancer.

She has had and is fighting breast cancer, and she just recently had breast reconstructive surgery. She felt that the trial should have been delayed, and the judge, Judge Styne in the Southern Distric of New York, decided to go ahead with the trial. After separating her from the other defendants who went on trial with Bob Menendez and granting her another delay, he finally said enough is enough for going to trial.

She has had and is fighting breast cancer, and she just recently had breast reconstructive surgery. She felt that the trial should have been delayed, and the judge, Judge Styne in the Southern Distric of New York, decided to go ahead with the trial. After separating her from the other defendants who went on trial with Bob Menendez and granting her another delay, he finally said enough is enough for going to trial.

How long is the trial expected to last.

How long is the trial expected to last.

I believe it's supposed to last eight to nine weeks, so it's going to be a marathon. And the prosecutors have promised that they'll try to streamline the case. In the first trial, there were three different sets of attorneys that could cross examine witnesses, and here there's only one. So you would think through that alone, it should cut back on a good amount of time that the jury will spend in the courtroom.

I believe it's supposed to last eight to nine weeks, so it's going to be a marathon. And the prosecutors have promised that they'll try to streamline the case. In the first trial, there were three different sets of attorneys that could cross examine witnesses, and here there's only one. So you would think through that alone, it should cut back on a good amount of time that the jury will spend in the courtroom.

I know you'll be following it. Thanks so much, David. That's Bloomberg Legal reporter David Voriakis. That's it for this edition of The Bloomberg Law Show. Remember you can always get the latest legal news on our Bloomberg Law podcasts. You can find them on Apple Podcasts, Spotify, and at www dot Bloomberg dot com, slash podcast Slash Law, and remember to tune into The Bloomberg Law Show every weeknight at ten pm Wall Street Time. I'm June Grosso and you're listening to Bloomberg

I know you'll be following it. Thanks so much, David. That's Bloomberg Legal reporter David Voriakis. That's it for this edition of The Bloomberg Law Show. Remember you can always get the latest legal news on our Bloomberg Law podcasts. You can find them on Apple Podcasts, Spotify, and at www dot Bloomberg dot com, slash podcast Slash Law, and remember to tune into The Bloomberg Law Show every weeknight at ten pm Wall Street Time. I'm June Grosso and you're listening to Bloomberg