Episodes
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At once revered and reviled, Citizens United remains one of the most controversial and consequential Supreme Court decisions of the twenty-first century. Striking down all prohibitions on independent campaign expenditures, the landmark 2010 decision found that corporations are afforded the same First Amendment free speech rights as are individuals.
While Justice Stevens, dissenting for the Court’s four liberal members, blasted the conservative majority’s “wooden approach to the First Amendment,” his words were not enough. Citizens United removed one of the last remaining guardrails against corporate interests, and as a result, dark money, corporate spending, and Super PACs have come into election cycles. Join the legendary Hollywood Director Judd Apatow as we get into the case.
This marks the end of the Courtside Season 1. There might be a special bonus episode coming with someone quite interesting next month, if the stars align. And yes, because you all made Courtside such a smashing success, Season Two will appear in the summer of 2024!
Paid subscribers have access to all the extra written materials about Citizens United below, including a short summary of the case, the full written decision, and an abridged one.
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I discuss these three Trump maneuvers, and why each is likely to fail. Listeners have been asking me about each of these 3, so I thought I’d put my answers to you in this format. For more on the new Georgia statute for ouster of local prosecutors (a move Governor DeSantis just used in Florida), read this informative article https://www.theatlantic.com/ideas/archive/2023/08/trump-georgia-indictment-motion-remove/675019/
If you aren’t a paid subscriber, please consider joining. I don’t run any ads on Courtside, everything is listener supported. All profits go to charity.
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Campbell v. Acuff-Rose Music Inc. is an important 1994 Supreme Court decision that profoundly impacted copyright law. In a unanimous decision, the Court found that parody is, by and large, protected under the fair use exception, meaning that it doesn’t violate copyright. In the case, 2 Live Crew, a rap group, parodied Roy Orbison and William Dees’ song “Oh, Pretty Woman.” The Court said that was OK. In the long run, the decision has eliminated barriers that previously prevented artists from incorporating unoriginal works into their own, thereby promoting creative growth and the expansion of the arts.
We have the ideal guest to discuss the case, Aaron Dessner. Aaron is part of what I think is the best band in America, the National. He's also the most sought after music writer today, having co written several records with Taylor Swift, including the hauntingly beautiful Folklore and Evermore. He just did the same with Ed Sheeran’s new record Subtract. The idea for this episode arose one night after one of Aaron’s concerts, where he and I got talking about music and copyright and how AI, Artificial Intelligence, was going to upend things.
So here’s what happened. In 1964, the singer-songwriters Roy Orbison and William Dees wrote a song entitled “Oh, Pretty Woman.” After completion, they assigned the rights of the song to a music company called Acuff-Rose Music, which soon had it registered for copyright protection.
25 years later, popular rap music group 2 Live Crew wrote a parody of the song, which they called “Pretty Woman.”
The parody began with the original lyrics and harmonies, but it quickly changed gears, replacing the wishful and melancholy words and chords with startlingly brash ones. 2 Live Crew wrote to Acuff-Rose and asked for permission to release their parody. Acuff-Rose denied the request, but the group went ahead and released the song anyway.
About one year later, Acuff-Rose sued 2 Live Crew for copyright infringement. The District Court ruled in favor of 2 Live Crew, but the Court of Appeals reversed. 2 Live Crew appealed, and the Supreme Court agreed to hear the case. At issue was a simple question, but one that had the potential to radically transform copyright law: Did 2 Live Crew’s parody qualify as fair use under the Copyright Act of 1976? The Court unanimously said it did.
Campbell v. Acuff-Rose Music was a very consequential ruling. Aside from allowing 2 Live Crew to continue selling their parody of “Oh, Pretty Woman,” the decision also promoted artistic growth, pushing the boundaries of what could acceptably be imitated from preexisting works. Indeed, by recognizing that parody meets the threshold for fair use, the Court opened countless doors for aspiring artists, ensuring that they can draw upon, alter, and otherwise criticize previous works.
But that is not to say that the decision gives artists a blank check. As Justice Kennedy remarked in a brief concurrence, “The parody must target the original, and not just its general style, the genre of art to which it belongs, or society as a whole.” In other words, parody qualifies under the fair use exception so long as it criticizes the original work (and not some broader societal phenomenon). The decision thus respects the key tenets of copyright law and protects the works of parodists, striking a delicate yet thoughtful balance between two competing interests.
Aaron and I get into a discussion of modern copyright problems, including the Ed Sheeran case and the ways in which Artificial Intelligence might upend things.
Paid subscribers have access to all sorts of information about the case, including a short summary of it, an abridged version of the decision, and the full decision. There will also be a remarkable bonus episode with more from Aaron Dessner for paid subscribers in the days to come.
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Andy Warhol Foundation for the Visual Arts Inc. v. Goldsmith et al. is a landmark 2023 Supreme Court decision concerning copyright law and the “fair use” exception. We have two amazing guests in conversation to discuss it. Adam Weinberg is the Director of the Whitney Museum, and the smartest person about art that I know. Deborah Kass is a brilliant artist, and some of her most famous work plays on Warhol. They are the ideal guests to discuss how this decision will transform the art world — and guide us through a vicious debate between Justice Sotomayor (for the majority) and Justice Kagan (for the dissent, joined by Chief Justice Roberts).
To understand what’s going on, first know that the Copyright Act gives artists a number of rights intended to preserve and promote creative expression. Included among these are the right to reproduce copyrighted work, the right to create derivative works, and the right to display copyrighted work in a public setting.
However, artists do not have absolute control over their work. In 1976, Congress passed a law stating that the use of a copyrighted work “for purposes such as criticism, comment, news reporting, teaching…scholarship, or research” is not an infringement of copyright. This is known as the “fair use” exception to the Copyright Act.
To determine if a piece qualities as “fair use,” the statute offers four factors for consideration: “The purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; the nature of the copyrighted work; the amount and substantiality of the portion used in relation to the copyrighted work as a whole, and; the effect of the use upon the potential market for or value of the copyrighted work.” If a new piece of art alters an original work to such an extreme that, under factor one, the “purpose and character” of the new piece is altogether different from the original, it is said to be “transformative.”
Enter Andy Warhol. In 1984, Vanity Fair commissioned Warhol to create a portrait of Prince for their magazine cover. The portrait was to be based on a photo taken by photographer Lynn Goldsmith; Vanity Fair had paid Goldsmith $400 for the photo and agreed to use it only for the cover of the magazine. However, Warhol went on to create 15 separate portraits of Prince, each of which used the photo as inspiration. In 2016, the Andy Warhol Foundation (AWF) sold Condé Nast the rights to one of these portraits. Goldsmith received no compensation, and when she heard about the transaction, she demanded payment. AWF responded by launching a lawsuit. You can see Goldsmith’s original photo on the right, and what Warhol did on the left.
AWF argued that Warhol’s rendition of Prince (titled Orange Prince) was so transformative that, under the first factor for fair use, the portrait acquired an entirely new “purpose and character” and was therefore legal. Lawyers for Goldsmith disagreed. Thus, the decision centered around one, key question: Did the sale of Warhol’s portrait of Prince make fair use of Goldsmith’s photograph, particularly with respect to factor one of the Copyright Act’s “fair use” exception?
Writing for a 7-2 majority, Justice Sotomayor held that the Warhol Foundation committed copyright infringement when, in 2016, it sold the rights to a Warhol work (based on a photograph by Lynn Goldsmith) without compensating Goldsmith. In a blistering dissent, Justice Kagan argued that the Majority Opinion would have chilling effects on the creative process, limiting artists, musicians, writers, and others in their ability to create new and inspired works.
I’m thrilled that listeners will get to hear Deborah Kass, one of the greatest living artists, and someone whose work appropriates Warhol (who in turn is appropriating others). This is the Red Deb of her’s that we discuss in the episode:
While it is too early to know exactly how the Supreme Court’s Warhol decision will play out, many experts see the case as a shift in the world of copyright law, opening the floodgates to more lawsuits and potentially hindering artistic creation across the country. It will be a fascinating next few years for copyright.
One last thing: I’m well aware that it’s hard to just listen to this episode without seeing the pictures. Next week’s copyright episode will be about music, not pictures, with the great guitarist and most sought after music writer today, Aaron Dessner. Together, they will give you a comprehensive look at how copyright law is impacting our lives, every day.
For all the written materials about the case, along with pictures and the full written opinion, and a bonus discussion with Deb and Adam, become a subscriber to Courtside at nealkatyal.substack.com.
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Judge Michael Luttig was one of the most respected jurists and lawyers in our nation. Appointed by President Reagan and a deep conservative, he played a critical role on January 6. Listen to his remarkable reactions to the indictment brought by Jack Smith.
For more, please subscribe to Courtside at nealkatyal.substack.com. There you’ll get access to all the full episodes and written materials, including deep dives on historic Supreme Court cases with discussions from people like John Mulaney, Katie Couric, and Rob Reiner. I will also be launching a second emergency Courtside today with my own reactions to the indictment.
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This episode is like a matter-anti matter explosion. Regina Spektor is one of the deepest and most thoughtful humans on the planet, and one of the most talented musicians to boot. Her music can bring you to tears with its celebration of life and emotion. She and I discuss one of the lowest points for the Supreme Court in recent memory, Hawaii v. Trump, where the Supreme Court upheld Trump’s severe restrictions on countries that were overwhelmingly Muslim. Paid subscribers on nealkatyal.substack.com will have access to the full written materials around the decision (including a short summary) along with some bonus material from the interview with Regina.
On December 7, 2015 (note the date), candidate Donald Trump called for "a total and complete shutdown of Muslims entering the United States.” 5 days into his Administration, he implemented it, leading to mass protests at airports.
That travel ban got struck down by the Courts. Trump created a new one. That one got struck down by courts. Trump created another one. And that third one is the one that went to the Supreme Court.
The Supreme Court, in a 5-4 decision written by Chief Justice Roberts, upheld the third ban. Chief Justice Roberts found that the ban was constitutional, arguing that it neither exceeded the executive power of the Presidency nor violated the First Amendment. Justice Breyer issued a dissent examining the Proclamation’s system of waivers and exemptions. In her more dissent, Justice Sotomayor rebuffed Roberts’ argument, connecting then-candidate Trump’s Islamophobic rhetoric to the ensuing travel ban and suggesting parallels to the Japanese internment cases. While the ban only lasted for four years, its impact was enormous; families were separated, dreams were crushed, and perhaps most disturbingly, the Court set a dangerous legal precedent. To me, as I wrote about in Yale Law Journal, it was a resurrection of the Korematsu case, where the Court upheld the Japanese American internment on grounds of national security. (Please keep in mind, I argued the Hawaii case in the Supreme Court and the lower courts, and have strong feelings, and some good stories I share here.). I have always felt the Supreme Court got Korematsu wrong, but part of the blame rests with the Solicitor General at the time, who lied to the Supreme Court.
Regina, herself a refugee, is the perfect guest to discuss the human impact of a decision like Trump v Hawaii. I can’t wait for you to listen in, for what she says about the promise of America is so moving.
Paid subscribers will have access to all the written materials and summary of the decision, along with a bonus episode discussing Regina’s tips for overcoming stage fright. Sign up at nealkatyal.substack.com
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As we wait to see what federal prosecutor Jack Smith will do regarding Donald Trump and the January 6 investigation, I wanted everyone to understand the major new developments in the stolen documents/Mar a Lago case.
This quick 5 min episode is available to anyone, but if you want more, including my in depth discussions about the Supreme Court with people like John Mulaney, Rob Reiner, Katie Couric, and others, please sign up at nealkatyal.substack.com
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Heather Cox Richardson is one of the most brilliant and accessible historians of our time. Her newsletter, Letters from an American, has over 1.1 million subscribers, and for good reason. And you’ll see it here — she is discussing perhaps the most important case the Supreme Court has ever decided, Dred Scott. It’s not an exaggeration to say that the Court’s decision sparked the Civil War.
There is so much difficult history to master to understand the case, and I’ve never heard it better explained than here. I mean, I’ve taught Dred Scott 20 times, but never with the incisive historical background she provides just in the first few minutes of the podcast. Many people gloss over the decision — it’s a bit complicated and it’s SO old. But it’s really important, and Prof. Richardson helps break it down into something absolutely understandable.
Dred Scott v. Sandford occupies a unique place in the annals of American history — that of the Supreme Court’s worst decision. Ever. Disgracing the very idea of democracy, the 1857 ruling stripped freed slaves of citizenship, invalidated the Missouri Compromise of 1820, and officially defined slaves as “property” under the Fifth Amendment. While the decision is primarily known for its racial animus, constitutional hogwash, and egregious holdings, it also had the adverse effect of splitting the court. Indeed, in a sign of just how divisive Dred Scott was, nine separate opinions were issued — one by each justice. We also cover the reactions to the decision, including the remarkable views of Frederick Douglass.
And in many ways, the Court’s deep schism reflected a broader reality; Dred Scott ripped apart an already-divided country, pushing the United States towards a civil war that seemed all the more imminent with each passing day. I can’t wait for you to listen to this.
Much of the episode is available to everyone, on any podcast platform. Paid subscribers have access to the rest of the episode, along with written materials about the case (I've summarized the decision and provided an abridged version of it, along with the full written decision). Paid subscribers also will receive a bonus podcast discussion with Professor Richardson. I would so appreciate you becoming a paid subscriber, which covers the considerable production costs, as I'm not running any ads on the podcast at all. All profits go to charity. Thank you for listening!
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I cannot tell you in words how excited I am for you to hear this episode. I’ve been struck by John Mulaney for years — his delivery, his unique understanding of the world, his deep empathy for the human condition. I didn’t know until last year he is also a Constitutional Law nerd. I mean, seriously, he texts me all sorts of questions about random Supreme Court cases. All the time. And they are damn good questions.
John’s questions are really what launched me on this podcast Courtside, because it occurred to me that Constitutional Law should not be the province of a bunch of lawyers — it belongs to all of us.
You are about to get treated (whether a paying subscriber or not) for what I’ve had the privilege of seeing with John, an absolutely first rate mind who brings joy and playfulness to everything he encounters. He picked Morrison v. Olson (1988), one of the most important cases in constitutional law. The case concerns how to prosecute Presidential or high level Executive Branch wrongdoing. When he picked it, we didn’t know Donald Trump would be getting a target letter for the January 6 events at the same time, but the imminent criminal indictment of Donald Trump raises the importance of this episode even more.
Morrison v. Olson was a sweeping Supreme Court decision, decided in 1988, that found the Independent Counsel Act of 1978 constitutional. This Act was responsible for the appointment of independent prosecutors such as Ken Starr, who kickstarted the sprawling and viciously partisan investigation of Monica Lewinsky, and Lawrence Walsh, who was tasked with investigating the Iran-Contra affair during the Reagan Administration. While the Court issued a 7-1 ruling in favor of the Act (with Chief Justice Rehnquist writing for the majority), the decision is widely thought to have been a mistake. Most believe that Justice Scalia’s lone dissent was ultimately correct, and some even argue that it is the finest dissent he ever wrote.
John is pinpoint accurate in describing Morrison, and the ways in which it matters. Paid subscribers are also going to get a bunch of bonus material from John, including the ways in which he thinks Supreme Court argumentation is similar to comedy, and its differences. It’s a remarkable discussion, and I can’t wait for you to hear it.
We also spend some time describing the different models for prosecuting a President. Ultimately, the big problem is that the Constitution vests the prosecution power in the President. And if it’s the President (or his friends or family) who are the ones accused of wrongdoing, there is an inherent conflict of interest in the investigation. Yet the Constitution doesn’t provide for any alternative. This is a problem of governance that goes back millenia — to Juvenal’s query Who Guards the Guardians? (Or, as Dr. Seuss put it, bee-watchers watching the bees, and bee-watcher-watchers watching the watchers.)
Regardless, the American public is about to see one model, the Special Counsel regulations, come into force as Jack Smith prosecutes former President Donald Trump. Understanding Morrison v. Olson is essential to understanding the constitutional architecture of this prosecution, and what we can expect. Enjoy this remarkable discussion with John Mulaney.
Paid subscribers will have access to the full interview and some bonus material, along with information and writeups about Morrison v. Olson, all on the substack website. https://nealkatyal.substack.com/. Sign up there for all the goodies.
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This week’s episode focuses on one of the most moving things I’ve seen in my life: the US Supreme Court using its powers to ensure that marriage equality is the law of the land. When I was in law school from 1992-1995, if you said the Supreme Court would require states to recognize same-sex marriage within two decades, you likely would have been laughed out of the classroom. And yet, that is precisely what happened.
Courtside is an entirely reader-supported publication. To receive new posts and support my work, consider becoming a free or paid subscriber. I’m donating all profits to charity, and your subscription covers considerable production costs.
This outcome was the result of brilliant advocacy and foresight by so many different people. One of them is our guest for this week, the legendary Rob Reiner, who is going to take you behind the scenes of how this monumental victory was achieved. It’s an amazing story. Rob is the gold standard of Hollywood, a truly accomplished Director. When Harry Met Sally. Spinal Tap. Princess Bride. American President. The list goes on and on.
He’s also a dear friend. When I argued Moore v. Harper, Rob came to watch and hold my hand. Perhaps my favorite moment at the lunch afterwards was when Judge Luttig admitted he didn’t know who Rob Reiner was, or what any of his movies were. The Judge is truly a man of tradition!
Rob and I have been collaborating on a TV show for families about the Constitution — something of a revival of Schoolhouse Rock. With Jordan Klepper!
The episode begins with a bit of legal news of the week, and in particular, an examination of Donald Trump’s claim that the Presidential Records Act allowed him to take classified information home and bring it to Mar a Lago. (Spoiler: it doesn’t.)
This week, we are doing a deep dive into Obergefell v. Hodges, the 2015 Supreme Court decision that made marriage equality the law of the land. The case began in the early 2010s in four states — Ohio, Michigan, Tennessee, and Kentucky — all of which defined marriage as the union between a man and a woman. These states, however, were not outliers; few States recognized same sex marriage.
Recognizing that their rights were being trampled on, fourteen same-sex couples and two men whose same-sex partners had died filed lawsuits against their respective state governments. James Obergefell was one of these people. More than two decades earlier, Obergefell had met and fallen in love with his future life partner: John Arthur. In 2011, however, Arthur was diagnosed with a debilitating illness called ALS. Realizing that Arthur’s death was imminent, the duo resolved to get married. To do so, they had to travel to a different state (Maryland) where same-sex marriage was legal; by this point, however, Arthur could barely move, meaning the couple had to be wed inside a medical transport plane on the airport tarmac. Arthur died three months later, but Ohio law forbade his death certificate from listing Obergefell as the surviving spouse. Grieving the loss of his loved one and pained by this state-imposed separation, Obergefell filed a lawsuit, alleging that Ohio state law violated his civil rights under the Fourteenth Amendment of the Constitution.
By the time the case arrived at the Supreme Court, however, Obergefell wasn’t the only plaintiff. More than a dozen similar lawsuits had been launched across the country, and they all merged into one case. Indeed, it was clear that this was the moment to decide the future of same-sex marriage for the country. And there were only two questions before the Court, both of which were relatively straightforward. First, is same-sex marriage a constitutionally protected right? And second, if someone receives a marriage license in one state, are other states required to recognize that marriage license as valid?
The Court answered yes. Learn about how it got there on the podcast. And stay tuned for a remarkable conversation with Rob, not only about how he directs Hollywood movies, but how he directs public movements. Paid subscribers will have access to the full conversation, all the episode notes (including short excerpted versions of the opinions in Obergefell along with the full version), and bonus material from my interview with Rob later in the week.
Here is a short 4 pager description of the decision in Obergefell
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Here is an excerpted version of the decision
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Here is the full decision:
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This week, we get into whether the human genome can be patented. A lot of people, when they think about the Supreme Court, think about big constitutional issues, abortion, gay marriage, death penalty, guns, etc. All of that is of course super important, but the Court has an outsized influence on so many other areas of our lives.
The Myriad case is a perfect example. The case might actually influence your life more than just about any other. It concerns whether the human genome can be patentable. That is, can a company assure assert that is, can a company assert ownership over a gene sequence that exists in your body? And the stakes are huge. The case Myriad Genetics’s facts concerned patenting BRCA1 and BRCA2, which are two genes that, if you have them, mean you have a very high risk of getting an aggressive form of breast cancer. But the case reaches far beyond those two genes to reach all gene patents. The Reagan Administration onward issued gene patents, and roughly 20,000 had been issued until the US Supreme Court got involved.
We’ll break it down with Katie Couric, someone who is crazy talented at breaking down complex ideas. She’s also got her own personal connection to these issues, and we’ll get into that as well.
But before getting into all of that, I’m going to cover this week’s legal news, and focus in particular on two big Supreme Court cases that were recently decided, Moore v. Harper and the affirmative action cases. Moore v Harper was my big win, and I’m going to take you behind the scenes. The Court invalidating the Republican party’s “independent state legislature theory,” which posited that state legislatures could act unconstrained from their own constitutions and courts in setting rules for federal elections. The Supreme Court, in a 6-3 opinion by the Chief Justice, rejected this argument, a win that former appeals judge Michael Luttig said was the most important case for democracy in the nearly 250 years of the Court’s existence
But, as always, you come for the deep dive on a Supreme Court case, and Katie does not disappoint with a fascinating discussion about Myriad Genetics. We will learn all about the Court’s unanimous ruling, written by Justice Clarence Thomas. And you'll learn a ton about Katie Couric, and her interview secrets.
My substack on Courtside has all sorts of additional materials about the case, including a short 3 pager about it, a longer 20 page abridged version, and the full version of the judicial opinion, for paid subscribers.
Courtside has no ads and is a reader-supported publication. To receive new posts and support my work, consider becoming a free or paid subscriber, joining at nealkatyal.substack.com. There are no ads on Courtside, everything is listener supported and all profits go to charity.
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Ten years ago this week, the Court issued one of its most important, and devastating, decisions. In a 5-4 decision, the Supreme Court struck down key aspects of the Voting Rights Act (VRA). This week’s episode gets into the case with the legendary John Legend. It’s a fitting time to do this, since I just found out I won Moore v. Harper in the U.S. Supreme Court in a 6-3 decision, a case that made clear that many election shenanigans are subject to serious court scrutiny. And the episode begins with a discussion of the Hunter Biden indictment and some reflections on the end of the Supreme Court Term and what to expect. There’s a ton of bonus material for paid subscribers too, including John Legend’s reflections on his childhood dreams and how he made the transition from a consultant at Boston Consulting Group to the mega star he is today. Please consider subscribing, and I'm giving all profits to charity.
Shelby County begins back in the 1960s, at the height of the Civil Rights Movement. During this time, the country was deeply divided, and Jim Crow laws were rampant throughout the South. In states such as Texas, Alabama, Georgia, Mississippi, and others, African Americans were systematically denied their right to vote. States and counties weaponized a whole arsenal of different voter suppression tactics. Some were overt, like poll taxes to literacy tests. And others were really subtle, like changing the polling hours for an election in a minority neighborhood the day before the election took place. Or moving the polling place across the street without telling anyone.
In response, President Lyndon B. Johnson pushed Congress to pass the Voting Rights Act, which was the single most important piece of voting rights legislation in American history. The Act contained many provisions, but perhaps the two most powerful were Sections 4b and 5. Taken together, these two provisions said that states and localities with a history of racial discrimination in voting practices must get federal court or federal DOJ approval before changing their voting laws. That meant any change – whether trying to have a literacy test or moving a poll across the street. Because Congress knew that there was no limit to the terrible ingenuity of racists who wanted to block people from voting.
Now this didn’t impact the whole country. Section 4b, it limited the preclearance requirements only to those states and counties which, prior to the 1964 presidential election, had a voting test in place and less than 50 percent voter registration. This is known as the “Coverage Formula.” In 1965, the formula covered nine states and a few dozen counties that tended to be the most racially discriminatory.
The Voting Rights Act (or VRA, as it’s called) was passed in 1965 and set to expire after five years. So, the Act was reauthorized in 1970. It was reauthorized yet again in 1975, 1982, and, in 2006. Each time the Act was reauthorized, it was challenged in Court. Time and again, however, the Supreme Court upheld the law; the Court pointed to the Fifteenth Amendment of the Constitution, which prohibits racial discrimination in voting and gives Congress “the power to enforce this article by appropriate legislation.”
But then President Obama won the Presidency. And I was tasked with representing the federal Government in defending the Voting Rights Act. It was my 4th Supreme Court argument ever. My boss Elena Kagan had a long confirmation process, and so instead of her as Solicitor General arguing it, the task fell to me. I worked my tail off. But it was hard to argue about the persistence of race discrimination 3 months after the nation elected its first black President. In any event, I threw myself in, and gave what I think was a pretty bang-up argument. I knew the Act had the blood of patriots on its pages – that Selma and the bridge were a deep part of its history. And I made much of the argument looking directly at Justice Clarence Thomas, because I really wanted his vote. Well, in any event, we did save the constitutionality of the VRA, in an 8-1 decision. The one dissenter: Clarence Thomas!
In that 2009 decision, called Northwest Austin v. Holder, the Court said that the VRA could stand. But it said that it was worried the government would have to justify the coverage formula – that it hadn’t been updated in 50 years. And so, over the next years, these largely Southern States argued that the coverage formula was unfair. And so that’s the issue in Shelby County.
The Court heard the case, and issued a sweeping 5-4 ruling. Writing for the Majority, Chief Justice John Roberts said that the coverage formula was outdated and violates the fundamental principle of equal sovereignty among the states. He pointed to the changes in voting registration numbers between 1965 and 2006 (when the VRA was reauthorized). For example, in Alabama in 1965, white voter registration was 50 percent higher than Black voter registration; in 2006, that difference was less than one percent. In Mississippi, there was a 63 percent difference between black and white voter registration in 1965, but in 2006, Black voter registration exceeded white voter registration by 3 percent. In short, the Chief Justice concluded that the Coverage Formula no longer addresses current voting disparities, and therefore must be unconstitutional. He writes the following: “In 1965, the States could be divided into two groups: those with a recent history of voting tests and low voter registration and turnout, and those without those characteristics. Congress based its coverage formula on that distinction. Today the Nation is no longer divided along those lines, yet the Voting Rights Act continues to treat it as if it were…”
Justice Ginsburg wrote a phenomenal dissent, one I go into some detail talking about with John Legend. There’s no better person to talk about and explain these concepts—John has spent years thinking about and supporting voting rights.
If you want a bunch of background material on the Shelby County case, including a short summary of the decision, a longer abridged one, and the full text of the decision, you can find it all at https://nealkatyal.substack.com/
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Welcome to Courtside, Episode I. The podcast begins each week with a short, humorous discussion of the week’s legal news (because we all need humor to get through it). And then it turns to talking about a landmark case that’s been decided by the U.S. Supreme Court. I’ve argued 50 cases at the Supreme Court, and served as the federal government’s top lawyer. But I want the Court to come alive for you.
Each week, I’m going to discuss a single Supreme Court case with one guest, someone who’s not a lawyer and who can translate the case into plain English. So instead of talking about the law with some fusty lawyer named something like Oliver Wendell Holmes, we’re gonna do it with celebrities like John Mulaney and John Legend and Katie Couric. The Supreme Court is increasingly intruding into every aspect of our lives, and the goal here is to unpack that a bit this Summer, and we’ll run through the Summer. In September, the Court comes back and I’ve gotta go back to my day jobs, but if this podcast works out, we’ll do it again next summer.
Oh, by the way, in subsequent episodes, I’ll be releasing bonus material to subscribers from each interview. Given the fabulous guests we are going to have, I don’t want to squander the opportunity to talk to each of them about creativity, resilience, improvisation, and performance.
You’ll see I don’t have any ads on the podcast, that is because substack is pioneering a new model for podcasts, one that is entirely listener supported. For Episode I, I’m making everything available to non-subscribers, so what you see here is the kind of thing you’ll get if you pay for a subscription. I’m donating every dollar I receive from the podcast to charity.
Episode I begins with the Trump arraignment in Florida, and then quickly turns to the Supreme Court. We discuss NYT v. Sullivan, a groundbreaking 1964 case about freedom of the press and speech. This is the key decision that allows the media to operate without getting sued (well, unless you are Fox News). It’s about as major a decision about speech as any the Court has ever decided.
While Courtside is going to avoid lawyers as guests, I couldn’t resist the opportunity to break that rule for this specific episode and invite Ari Melber to the show. Ari has a unique perspective, he was a lawyer at a top law firm practicing First Amendment law, but now he’s on the other side of that, as one of the most brilliant anchors on MSNBC, where he’s had to think about freedom of the press and the threats posed by libel suits, akin to that with Fox and Dominion. Ari is also my partner in crime on MSNBC, where we work together each week on The Beat.
In fact, Ari came to the Supreme Court recently to watch me give my 50th Supreme Court argument. This is us after the argument (I am definitely not someone you want to see photographed before the argument.)
And, as some of you know, I do a series every Monday called Opening Arguments with Ari on his show The Beat.
Thank you for reading Courtside! I’d appreciate it if you would share this post with anyone in your life who is interested in the Supreme Court.
Anyway, for our discussion with Ari, I put together some materials to help guide you through the case. For Episode 1, all the materials are available to nonpaying subscribers. In later weeks, subscribers will be able to access all the case materials. Each week, I’ll provide a short 3 or 4 pager description of the case, along with a longer (roughly 20 pp) excerpted version of the Supreme Court case. I’ll also throw in the full case too, so interested readers can read that.
Stop by my Substack to find those those documents and images: nealkatyal.substack.com
This is a public episode. If you would like to discuss this with other subscribers or get access to bonus episodes, visit nealkatyal.substack.com -
June 13, 2021
On tonight's #Courtside, a discussion of the recent revelations that Trump's DOJ electronically spied on Dem members of Congress and their families.
COURTSIDE with Neal Katyal is a fast, irreverent look at the legal issues of the day, hosted by the Obama Administration's top courtroom lawyer and Georgetown Professor Neal Katyal. Neal has argued 44 cases at the Supreme Court and explains the legal issues of the week in under 10 minutes.
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This is a public episode. If you would like to discuss this with other subscribers or get access to bonus episodes, visit nealkatyal.substack.com -
May 31, 2021
Today, on #Courtside, a description of the Tulsa Massacre of 1921 and how new laws in Oklahoma and other places that try to ban the teaching of such history are unconstitutional.
COURTSIDE with Neal Katyal is a fast, irreverent look at the legal issues of the day, hosted by the Obama Administration's top courtroom lawyer and Georgetown Professor Neal Katyal. Neal has argued 44 cases at the Supreme Court and explains the legal issues of the week in under 10 minutes.
Follow Neal:
https://www.instagram.com/nealkatyal
https://www.twitter.com/neal_katyal
https://www.nealkatyal.com#NealKatyal #Courtside
This is a public episode. If you would like to discuss this with other subscribers or get access to bonus episodes, visit nealkatyal.substack.com -
May 23, 2021
Discussing the Supreme Court's decision to hear the Mississippi abortion case, and what it means for the future of Roe v. Wade, and what you can do about it.
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https://www.nealkatyal.com#NealKatyal #Courtside
This is a public episode. If you would like to discuss this with other subscribers or get access to bonus episodes, visit nealkatyal.substack.com -
May 16, 2021
Can Florida Governor DeSantis prevent Donald Trump from being extradited to face justice in New York if Trump is indicted? Answer: No.
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This is a public episode. If you would like to discuss this with other subscribers or get access to bonus episodes, visit nealkatyal.substack.com -
May 9, 2021
On #Courtside tonight, an analysis of the new voting restrictions in Florida and other states, what they mean for the future of our democracy, and what you can do about it.
Follow Neal:
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https://www.nealkatyal.com#NealKatyal #Courtside
This is a public episode. If you would like to discuss this with other subscribers or get access to bonus episodes, visit nealkatyal.substack.com -
May 2, 2021
Examining the FBI raid of Rudy GIiuliani and what it means.
Follow Neal:
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https://www.nealkatyal.com#NealKatyal #Courtside
This is a public episode. If you would like to discuss this with other subscribers or get access to bonus episodes, visit nealkatyal.substack.com -
April 25, 2021
Personal reflections on the Chauvin prosecution and a deep dive into the new tragic Supreme Court decision on juvenile life without parole.
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https://www.nealkatyal.com#NealKatyal #Courtside
This is a public episode. If you would like to discuss this with other subscribers or get access to bonus episodes, visit nealkatyal.substack.com - Show more
