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yeah

1:30

your podcast

1:33

about the supreme court that is celebrating independence

1:35

day by making itself independent from

1:37

law happy july for his

1:40

hobby july fourth it is also steve

1:42

briar independence day weekend or

1:44

that's right we're recording on thursday it

1:46

is the last day of the term and it is today

1:49

that justice stephen byers retirement took effect

1:51

that was at noon today and i just

1:54

have a feeling that sonia sotomayor and elena

1:56

kagan will be gazing longingly at him

1:58

as

1:58

while to that of that building

1:59

the last time as an active just

2:02

as i just had this

2:03

feeling they are tempted to join him that

2:05

they needed and so they

2:08

i'm happier note justice could hundred brown

2:10

jackson was sworn in earlier today

2:12

the chief justice administer the constitutional

2:15

oath justice breyer her former boss

2:17

administered the statutory judicial

2:19

owes so as much

2:22

of a bloodbath as this last week was

2:24

it actually was lovely to

2:26

see her that formally

2:28

into the role and kind of gets

2:31

started their although oh my god

2:33

what the dumpster fire to walk into can

2:35

you imagine

2:36

the early on thursday as a term was

2:38

and and there were pictures of an actual

2:40

fire emanating in d c

2:42

from the fort totten stop i don't know if you saw

2:44

the is it with no idea it was very

2:47

real very real ah okay

2:49

so we are your hosts a

2:52

meal at men

2:52

opinion about that it's a

2:55

widow right and i'm teacher

2:57

and i want to be added to the atlantic

2:59

again sonia sotomayor to has he been jackson

3:01

signal channel on because i

3:04

am sure they are things to say right now on don't

3:06

worry most the murray has not written by or style

3:08

into the sunset though she is traveling

3:11

but she will be back for the term recap next

3:13

so as we just

3:15

made or last week the court finished

3:17

releasing opinions and argued cases were

3:19

gonna reach up the cases we got last week and

3:21

then next tweet we will have a more complete term

3:24

recaps and on that episode we will also

3:26

discuss our plan for the summer and

3:28

this the episodes that will do over the summer

3:30

but for now we got some opinions to tell you about

3:33

first the breaking news is that

3:35

scotus is breaking things so we're going to try

3:37

to cover basically cover basically opinions we got this week

3:39

which means for not gonna be able to do so in the

3:41

depths that we with like because they got

3:44

a lot of opinions out but our

3:46

summer episodes and some others that we are

3:48

planning are gonna go in more depth on

3:50

some of these cases so pretty

3:52

service today ah stay tuned for more

3:54

in depth to come

3:55

okay so we're going to start with the courts

3:57

major opinion in oklahoma versus

3:59

stroke

4:00

that this is the important federal

4:02

indian law and tribal authority case we were watching

4:05

we did a preview of the case and recap of the

4:07

arguments and the case here arises

4:09

as a result of the supreme court's major federal

4:11

indian law ruling from just two terms to go

4:14

in mcgirt vs oklahoma but

4:16

it's implications go way beyond

4:18

mugger said help us discuss this case

4:20

we are delighted to be joined by professor

4:23

greg a blocky greg as a

4:25

professor of law and the hell it l crocker

4:27

faculty scholar at stamford law school

4:29

as well as a professor of history at stanford and

4:32

melissa would want us to know he was a visiting

4:34

professor at n y u law this

4:36

past semester of grub was also

4:39

one of the contributors to the amateurs brief that we highlighted

4:41

in this case that was filed by the and why you

4:43

deal sovereignty project and his scholarship

4:45

on federal indian lot was cited by the

4:48

only justices who we trust on federal india

4:50

marked as discourse edge corporate a descent

4:52

for himself along with justice is briar sotomayor

4:54

and kagan but we are getting ahead of ourselves i

4:57

so first welcome to the show guy group

4:59

so excited to have you here just thanks so

5:01

thanks for the version happy to talk about this even

5:03

if i'm i'm a little less thrilled about the actual

5:05

opinions as our way this case

5:07

is about much more then mcgirt

5:09

but it is helpful to understand the precise

5:11

issue in the case against the backdrop of

5:14

mcgirt so maybe we should start they are

5:16

we are you want a baby talk about mcgirt to get

5:18

started yet so nigger as

5:21

many of you probably recall with a sigh for

5:23

opinion written by justice courses that concluded

5:25

that the boundaries of a long established

5:27

progressive a son were still intact

5:30

and and contest you know sections

5:32

of oklahoma that decision with

5:34

five for written by just as courses

5:36

and joined by the band for democratic appointees

5:39

on the court including justice ginsburg

5:41

the decision was a big win for tribal authority

5:44

greg i don't want to mess up federal

5:47

indian law so why was it significant

5:49

that the court reaffirmed the existence

5:51

and boundaries of the creek recipe said

5:53

immigrant i will say my longstanding view

5:55

and mcgirt is that the courts simply applied

5:58

pretty well established precedence more

6:00

it it basically said this in nebraska vs

6:02

parker only a few years earlier but

6:05

that is a big the own business analysts

6:07

court right now in every a swath of

6:10

yeah , think it's worth saving raise the stakes were very

6:12

high we were dealing with i'm a huge

6:14

chunk of territory territory was some

6:16

suggestion as a subsequently been held

6:18

by our the oklahoma courts that other

6:21

parts of oklahoma would also be considered

6:23

to be indian country so the sick

6:25

for very high and the other thing worth noting

6:28

is also justice courses his opinion edit

6:31

a lot of very strong writing writer was

6:33

not just a very pro forma opinion

6:36

was opinion that was that spoke very robustly

6:38

and very eloquently about the

6:40

meeting and the history of the relations

6:42

between the united states and interesting

6:44

in part of the significance of

6:46

you know yes it is indian country

6:49

are like the reservation remains intact is

6:51

that changes who might have authority

6:53

over some of the land so is it is

6:56

indian country reservation that means tribes

6:58

as solver and you know have

7:00

greater authority to regulate tribal lands

7:03

and if it's not indian country

7:05

and not a reservation that if i states

7:07

as suffer and have greater authority to

7:09

the way to way and so whether something is

7:12

indian country and a reservation matters

7:14

as to which sovereign is supposed to have

7:16

with what kinds of

7:17

the already and over hell yeah there's a

7:19

whole complicated jurisdictional chart that

7:21

i am now going to have to go change for the

7:23

next mit tests that addresses

7:26

precisely this question and it is a complicated

7:28

patchwork of of tribal federal

7:31

a now increasingly state authority

7:33

though as greg was the same the decision

7:35

in the girl was consequential in part

7:37

because the reservation there

7:39

and confessed large swaths

7:42

of oklahoma and it turns out the state

7:44

of oklahoma did not like the decision

7:47

in mcgirt ah like view he did

7:49

not like if you had the governor of oklahoma

7:51

as well as other state republicans

7:54

and conservative commentators going

7:56

on fox news claiming that the

7:58

decision was reading

7:59

over these problems for

8:02

than now some of these assertions

8:04

have and let's say called into question

8:07

at a minimum by rebecca

8:09

nagel among other people but

8:11

you know that is i think an important backdrop

8:13

to this so the state of oklahoma

8:15

very very unhappy with mcgurk

8:18

basically launched a series of challenges to

8:20

it including this one that has filed

8:23

asked the court to address to questions

8:26

one whether to overrule mcgirt

8:28

oklahoma and pound see

8:30

is that the court looks different from the courts

8:33

decided mcgirt just two years ago and

8:35

thought need we have a shot right let's

8:37

go for it but secondarily

8:39

ask the court weather looming mugger

8:42

is correct and will not be overruled states

8:44

nonetheless have criminal jurisdiction

8:46

over cases on tribal lands and reservations

8:49

that involve non indians descendants

8:51

and indian victim though

8:54

as we discuss only preview the case it

8:56

seemed that least to me like there were

8:58

a fair number of supreme court decisions

9:00

as well as some statements and bigger itself

9:02

that represented states did

9:04

not have criminal jurisdiction

9:06

over those kinds of cases

9:09

greg your the legal historian you know for listeners

9:11

who might not be familiar with federal indian law

9:13

can you give us an assessment of kind of the

9:15

state of the law or the backdrop to this issue

9:17

before let's say

9:19

justice cavanaugh stepdad

9:22

yeah ah how much time do have no assistance

9:25

sure version of this is

9:27

i think there is just a widespread assumption that

9:29

states lacked this jurisdiction over

9:32

nine indian offenders against

9:35

the indian victims ah the

9:37

supreme court has basically said as much a

9:39

half dozen times over the

9:41

nineteenth and twentieth centuries that's

9:43

how i've been teaching it for years and

9:46

then one time when time was using and

9:48

one of my students asked me asked students

9:50

are want to do why is

9:52

that the principle as you know

9:54

it's always tricky when seeds sq

9:56

the question they are like this like this

9:58

is a tricky answer his question the answer and

10:00

in the answer is in part it's it's always been

10:02

that way i'm and of part

10:04

because it a very complicated history

10:06

of of indian country as a distinct

10:09

jurisdictional space so

10:11

the challenges it's very hard to point

10:13

to a single piece of federal

10:16

tax which is of course with the majority here

10:18

demanded but if you were

10:20

to ask why isn't there a single piece

10:23

of text you know you might after want

10:25

mass the same question why for instance can't

10:27

to set of new york's exercise jurisdiction

10:29

over parts of new jersey it's like okay

10:32

you could just or maybe to some constitutional

10:34

principles but there are deep seated structural

10:36

questions about sort of territory

10:39

and jurisdiction that are lurking are lurking background

10:41

hear that that are very difficult to

10:43

answer with a reference to specific

10:45

bits of legislation in the same way

10:48

yeah i mean sometimes people call the is constitutional

10:51

backdrops you know sometimes people call it

10:53

constitutional com and loss but they

10:55

are these principles that are conferred france

10:57

practiced structure history

10:59

in the political theory underlying the relationship

11:02

between different software and set limit

11:05

to the extent as states

11:07

the federal government tribes

11:08

already officer

11:09

areas and over a certain percentage now

11:12

we get to the yet again which is basically like

11:15

too bad so sad says

11:17

the the pre in court that's a t ldr

11:19

that the keep meeting

11:21

yeah i'm add some flavor or so and we've

11:23

we we we've managed

11:24

cabin on courses but we should maybe to say explicitly

11:26

this was a five for opinion by just as cavanaugh

11:29

i'm who had been in dissent in mcgirt but of course

11:31

the math has since changed it's answer the

11:33

call in that cavanaugh opinion rules that states

11:35

have jurisdiction over cases involving

11:38

crimes by non indians against indians

11:40

there is a the extremely forceful the sandwich

11:42

we will talk about by justice coursage together with

11:45

the three democratic appointees so

11:47

while this decision affects the consequences of the mcgirt

11:50

rulings it seems to apply

11:52

more broadly than that right by giving states

11:54

can for interest actions over crimes

11:57

again by non indians against indians

11:59

on any

11:59

the tribal our reservation plans

12:02

the taste funny kind of pointedly

12:04

involves questions about how to read

12:07

history so you're kind of what i mean by

12:09

that there's no question that there are historical

12:11

moments where states sometimes

12:14

with the blessing of the federal course tried

12:16

to and sometimes were allowed

12:19

to

12:19

these power from

12:22

right here you have these cases in

12:24

which the court said sure these are tribal

12:26

lands the states can prosecute crimes

12:28

where the defendant and the victim is not be

12:30

as how do we think ground

12:33

about how to read

12:35

history when some of these

12:37

cases are some of this historical practice

12:41

we might have reasons to be a little bit

12:43

skeptical of were a reason not to

12:45

give

12:45

for scale the cases you were referring

12:47

to him and britney and draper their from

12:49

the late nineteenth century which of course is a pretty front

12:52

moment to look to and the history of of

12:54

several indian policy more generally that

12:56

actually i think there's a particular reason that the

12:59

cord doesn't discuss as to why

13:01

these cases probably don't bear as much weight the

13:04

court give them which is both of them largely

13:06

rests on equal footing doctrine

13:09

which , the context of of

13:11

federal indian law the supreme court said

13:14

in ninety ninety nine rested on a

13:16

false premise and rejected that

13:18

argument and just in in herrera

13:20

vs wyoming they reiterated the same principle

13:23

just a couple terms ago saying lox equal

13:25

for they equal for overruled

13:27

this case from the late nineteenth century resting

13:29

on the equal footing doctrine so i could you explain

13:31

equal footing doctrines ah yes so that

13:33

the equal footing doctrine is based on the principle that

13:36

winner a state join

13:38

the union it has equal rights

13:40

of sovereignty as existing states

13:43

and states and the argument was

13:45

when you know wyoming or colorado

13:48

join the union they had the same

13:50

rights as let's say georgia and of course

13:52

i think that example deborah liberally

13:54

because as as i

13:56

was services georgia demonstrates and i'm sure we'll

13:58

get into that

14:00

the recorded already articulated that georgia

14:02

lass jurisdiction over native

14:05

to be fair though greg i'm just a

14:07

cabin i'm not really so sure that

14:09

she's just us marshal meant that and were services

14:11

georgia and you know he he he

14:14

has a better better read on

14:16

on history at that time that then she just

14:18

as marshals as are set your average

14:19

the remarkable opinion and where it

14:22

where they say you know yeah okay we

14:24

only lifted past sometimes that the other

14:26

she's just as marshall stuff we're just we're gonna

14:28

throw that out the door he didn't know new talk about that

14:31

is a pretty remarkable statement from statement

14:33

from i will say also

14:35

added as a case that ah

14:37

the pronunciation which causes perennial

14:40

confusion and

14:42

i as a doing glitter stubbornly insisted

14:44

saying worcester but

14:46

i will say that once i visited the be

14:49

i knew it showed a historic sites and the people told

14:51

me that it is in fact pronounce rooster i'm

14:53

going to continue pronounce it western till the day till die

14:55

day suspect

14:56

okay well dot and

14:58

so it just as courses descends

15:00

you know as kate sad is quite powerful

15:03

and he kind as dr

15:05

an analogy between what the court is doing here

15:08

to what it did in other key says where

15:10

the court saying sand again like steve lawless

15:12

assertions of authority over

15:14

tribes so just of course it right

15:16

where the court once stood firm today

15:19

and wealth after the cherokees exile to

15:21

what became oklahoma the federal government promised

15:23

the tried that it would remain forever free

15:25

from interference by state authorities at

15:28

various points in it's history oklahoma

15:30

has chased under this limitation were

15:32

a predecessors refuse to participate

15:34

in one state some awful power grab at

15:36

the expense of the cherokee today's court

15:39

seeds to or not or course

15:43

it's defenses as to get where the court goes

15:45

it has to cut back on other cases as well

15:47

statues and it's not just judicial

15:49

precedent from the eighteen hundreds on but

15:52

it's also congressional and admins decided

15:54

against the backdrop of those cases so

15:56

could you tell us a little bit about those guys

15:59

like he said says kind of

15:59

the an assumption you know how people have

16:02

operated under this understanding

16:04

you know what were the congressional enactment

16:06

how to a park yeah so as

16:08

with so much in federal and in law i can say

16:10

this goes all the way back in fact some other way back

16:12

to seventy nine d was the first time that congress

16:15

establish this federal jurisdiction over

16:17

crimes by non indians

16:19

against the indians but

16:21

it was reenacted in eighteen seventeen

16:24

and eighteen thirty four now as part of this

16:26

to censored called the general crimes act

16:28

but it doesn't explicitly say that the federal

16:31

government has exclusive jurisdiction which

16:33

jurisdiction what that the majority demanded but

16:35

there is a lot of evidence that was

16:37

the understanding at the time and more

16:39

than that there are such that consensus that reinforced

16:42

says you says instance public law to eighty so public

16:44

was to eighties the statues that basically

16:46

gives say it's jurisdiction within indian

16:49

country that they can opt into importantly

16:51

with with the as amended in nineteen

16:53

sixty eight only with tribal consent

16:58

yeah the states already had

17:00

jurisdiction over indian country

17:03

as this ruling suggests the argument

17:05

is well why then would you need

17:07

public lightweight right why would you need to sense

17:09

is that expands the scope of of states

17:11

or sticks and mean justice courses right

17:14

now and i think correctly that the longstanding

17:16

view was that in order to have

17:18

jurisdiction within indian country

17:21

there had to be some authorization by

17:23

the federal government for states exercise that

17:25

could

17:26

not just kind of cutting back on the statutes but also so

17:28

you're saying you know some of the earlier president's on

17:31

and as i you know really interjected

17:33

you know one of the president's at the courthouse to kind

17:35

of cut back on his worcester vs

17:37

georgia the opinion by chief justice marshall

17:39

where the supreme court sad that georgia couldn't

17:41

prosecute missionaries were going onto to

17:43

tribal bands and the gorgeous

17:45

kind of pretend like even the supreme

17:48

court never followed that precedent i'm

17:50

so what justice kavanaugh says is the

17:53

general notion drawn from chief justice marshals

17:55

opinion in worst or has yielded

17:57

to closer analysis by eating

17:59

the

17:59

the the court no longer viewed reservations

18:02

as distinct nations and

18:04

i just think like this is place

18:08

a flex by and originally

18:10

a pseudo to look back at

18:12

john marshals

18:14

of the world around him and

18:16

be like no actually

18:19

i understand it better than

18:21

you did it is really

18:23

play something like are there other

18:26

examples of this gregor like a do

18:28

other things come to mind or is this is kind of

18:30

how originalism in federal indian

18:32

law has can

18:33

i didn't go a problem

18:35

that provisionally in federally the in

18:37

our faces that if you were truly

18:39

original us in several indian law you

18:42

support a robust vision of

18:44

tribal sovereignty and you support

18:46

a ah very limited

18:48

scope for state authority right and

18:50

and even the majority opinion acknowledges

18:53

that there was this widespread principle

18:56

of territorial separation in

18:58

the founding euro but then what's remarkable

19:00

is that they say that it was abandoned

19:03

over the course of the nineteenth century antics that is

19:05

antics fascinating the first of all the passive

19:07

voice as but second

19:09

of all i'd i'd our it's i'd get a

19:11

little as little little bit of i'm

19:13

writing to take that as that i remind

19:15

my seasons my seasons can hide a lot with the with

19:18

the passive voice there for you should avoid it

19:21

the the notion

19:25

i think what's fascinating about it is they

19:28

don't talk about it all where this principle of territorial

19:30

separation comes from right they

19:32

don't talk about it as a constitutional

19:34

principle they don't even talk about it is sort of a common

19:37

law or constitutional principle

19:39

they just say well you know we moved away from

19:42

that a you know marshall misunderstood

19:45

i think the much more accurate account is that

19:48

the the principle of of worcester force

19:50

vs georgia arrested on an idea that

19:52

you know they just was absolutely separate

19:54

and completely be marketed and that became a very

19:56

difficult principle

19:58

you to sustain

19:59

in especially if you're in the business of trying

20:02

to conquered subdue native peoples

20:06

so there were these tweaks over the

20:08

course of the nineteenth century be the idea

20:10

that was wholesale repudiated is absurd

20:12

and i , with particularly remarkable

20:14

is that even the supreme court in the early

20:17

twentieth century which is hardly a particularly

20:20

proud tribal supreme court not

20:22

willing to go as far as the score in extending

20:24

the principles of mcbride need draper in fact

20:27

the in in nam the donnelly

20:29

case in the early twentieth century they say no we're

20:31

not extending that to precisely the category

20:33

of crimes as a brit that the sprinkler

20:35

it now if sensitive so ah

20:38

, it's certainly the case that history

20:41

after worcester is of course like so much of this

20:43

history really complicated and often tortured

20:45

but the idea that are we just are done

20:48

with worcester and are never going to invoke it again

20:50

is laughable as in fact in in

20:52

nineteen sixty in and reigns vs leave

20:55

this room for basically says the opposite they say

20:57

like yes we realize that was there is

20:59

there's a lot of challenges but it is still good law

21:01

and we still holds her those principle fairly

21:04

features in the majority decision in fact

21:06

i got was a long record

21:07

the know so it's it's necessarily

21:09

as he can answer a question

21:12

that's a sort of a broader question about this

21:14

particular court and it's methods i mean obviously

21:16

this is a self consciously originalist

21:19

court and we have seen this really selective

21:21

deployment of history in the bruin

21:23

the gun case obviously dogs the abortion case

21:26

this kind of maximum

21:27

the court of asserting incredibly broad authority across

21:29

a range of areas and in a one of

21:31

these cases in obviously history is front and center

21:34

it does feel like i'm i'm

21:36

an aclu ezra klein and upon they do with in this week

21:38

but he basically says what's crazy about

21:39

in that field like at the court is not only

21:42

the know asserting the authority to say with allies but

21:44

asserting the authority to say what history means

21:46

you know like it is it it's as if it decides

21:49

the meaning of even deeply contested

21:51

history and there's something incredibly

21:53

troubling that but i guess i have a question which is

21:55

that maybe this the engagement

21:57

with history is kind of of

21:58

it'll and seventy three

21:59

indian all cases and so it's just a question of

22:02

not whether by how you do history so

22:04

i guess i'd be curious as a legal historian

22:07

greg history just kind of inextricably

22:10

intertwined with a case like this one in so

22:12

it's a question of who gets the history the word

22:14

is the court a little bit exceeding the

22:16

scope

22:17

it's ability when it seeks to distill

22:19

and discern the kind of true meaning of these

22:21

complex historical narratives

22:24

this obviously question that i think a lot about in

22:26

this particular area i think

22:28

this is where the background principles do a lot

22:30

of work because one of the things that a redirect my students

22:32

is that this history is

22:35

incredibly complicated and vacillating

22:37

right the federal government views of native people

22:41

have , varied wildly over the

22:43

course of us history and so that's

22:45

how my students if you wanted to come up with a narrative

22:47

in which the federal government

22:49

for you know constantly denigrated insubordinate

22:52

of people you can construct that from the

22:54

historical materials if by

22:56

contrast you want to construct a narrative

22:58

in which the federal government has upheld

23:00

the defended native sovereignty you can find the evidence

23:02

for that narrative as well so

23:05

the question then becomes what you

23:07

do with conflicting evidence

23:09

conflicting narratives and

23:12

i think that is where the background presumptions come into

23:14

play and in going back to mugger i think what mcgurk

23:16

is is particularly helpful for

23:18

his sake well look here we have a

23:21

very messy history the history of how

23:23

oklahoma became a safe from indian territory

23:25

is really complicated but we're just

23:28

as course it does helpfully is remind us

23:30

that we have a clear save his rule precisely

23:32

for this problem right in other words congress

23:34

needs to speak very clearly is it is going

23:37

to take away that authority

23:40

and you can throw this evidence of

23:42

the wall but you cannot point me to one moment

23:44

where congress has actually taken with a thorn

23:46

in so that is wise i think the t

23:48

dispute in this case about it in khesar were

23:50

dot is what the background presumption should be the

23:52

background presumption for the majority

23:55

is that tribal territory is going

23:57

to be considered part of part state unless you could

23:59

show otherwise and just as courses

24:02

reverses that production and says know if you want

24:04

to argue that the state to has authority here you

24:06

have to show some sort of several authors isn't

24:09

and and in my view in think gore

24:11

such as principal finds much stronger

24:13

foundation in the longstanding traditions

24:15

in the way that thought that these questions

24:17

have been approach historically but again you

24:20

know if know want to construct the alternative narrative the

24:22

tools and material are there to do so and

24:24

this is one of the great challenges in this area of law

24:26

as justice there is so much confusion

24:28

and uncertainty and so the background

24:30

principles do a lot of work

24:33

though i wanted to pick up and something you said which

24:35

as hear the court appears to go further

24:37

than they did empire cases

24:39

even when they were blessing aggressive assertions the state

24:41

authorities but also on this idea

24:43

of picking your background principal

24:46

and what that back on principle might reflect

24:48

because you're to my mind there were some passages

24:50

in his opinion that sounded hill

24:53

maybe just to my eyes are at my ears

24:55

another instance of the core of to signing off

24:57

on a graph the power grab at states

25:00

and on the basis of minimizing treble

25:02

authority and the significance of tribal authority

25:05

so you know there's a passage in the

25:07

opinion that says the question in this case

25:10

was relatively insignificant in the

25:12

real world or you know a passage

25:14

where does his cabin our rights indian country

25:16

is part of the state not separate from

25:19

the state which you know again to my my cat

25:21

wouldn't minimize his the idea

25:24

of tried to separate sovereigns and

25:26

it already is like what did you make

25:29

of this language i mean just as courses

25:31

calls this case you know the latest entry

25:33

and the anti can't and of federal indian law

25:35

is a part of what he's referring to or

25:38

right yeah i mean i think there's a lot going

25:41

on again the idea that's that tribes

25:43

are ordinarily part of state territory

25:46

apps and some clear consensus federal preemption

25:48

is a principle that could do a lot of damage

25:51

not just in the specific instance

25:53

of the exercise of criminal jurisdiction

25:56

but more broadly of been a the court

25:58

alludes to these bracket within cases which

26:00

are quite frequently and which states

26:03

and tribes have fights over civil jurisdiction

26:06

those could potentially be widely

26:08

implicated impacted by this decision

26:12

i think the majority

26:14

views

26:16

includes the tribal sovereignty is not at issue

26:18

because they say look we're not taking

26:21

authority away from the truck they

26:23

are doing is we're giving authority to another

26:25

sovereign in this instance and so that doesn't

26:27

impact or minimized tribal sovereignty writing

26:30

justice course this is right to say that that

26:32

is an extremely crab division

26:35

of what it means to protect tribal sovereignty

26:37

and i think it's pretty willfully blind to

26:39

what the practical consequences of this

26:41

sort of decision can i guess

26:43

if you could just elaborate a little bit on the consequences

26:45

on the ground beyond just criminal prosecutions

26:48

of the sort the court with facing in this case

26:50

the us will the the shortest way

26:52

to answer this is to say that this

26:54

is not hypothetical right because we know

26:56

what happened when public law to eighty

26:58

was extended over

27:01

tried that is when state

27:03

jurisdiction infiltrated indian country

27:05

with congressional blessing the number

27:08

of very important things happened first congress

27:10

substantially the minutes the amount

27:12

of resources that were available for

27:15

tribal court tribal policing the

27:17

infrastructure of tribal criminal justice

27:19

that is pretty clearly the most important

27:21

work in preserving law and order

27:24

in indian country the

27:26

other thing is that the decision not to criminalize

27:28

something

27:29

is a really important decision to right

27:31

they seem to say well you know what does it matter if

27:33

you have more and more criminals or

27:35

six an overly just

27:37

in light of recent decisions like why doesn't

27:39

matter whether a state my criminalize of course

27:41

and if a tribes it's not right hypothetically

27:43

yeah i mean although i want

27:45

to take it a little bit out of the abortion context because

27:47

i six is it has

27:50

been unfortunate the way that those two of a

27:52

wider net so much of the paradigm is

27:54

has been about abortion you can imagine

27:57

lots of other instances in which tried might

27:59

not want he's coming at enforcing

28:02

entire the

28:05

entire scheme of tribal gaming, rests

28:07

on the principle that state

28:10

laws might not necessarily be

28:12

able to apply to indian country

28:14

in many instances wants

28:18

to experiment with

28:20

with cannabis or engage in other

28:22

forms of economic development that

28:25

states don't like that they

28:27

disapprove of that they try i mean, it's

28:29

interesting, right? we just saw isleta, where

28:32

texas trying to step in and prevent

28:34

the isleta just sore from creating

28:36

bingo, operation you

28:38

can imagine lots of instances in which states

28:41

have very different priorities from frost until

28:43

this idea that somehow state

28:46

involvement won't impact the scope

28:48

and meaning of tribal sovereignty that to

28:50

my mind is is incredibly short-sighted so

28:52

what are we to make of justice

28:54

barrett's boat? in this case, you a she with

28:57

the majority she was not on the court

28:59

the court heard mcgurk what does it say about where

29:02

she be on tribal sovereignty and

29:04

authority maybe with an eye toward

29:06

max terms of monumental case

29:08

about the indian child welfare act in

29:11

in berkeley and

29:12

i think a lot of people

29:14

in the indian law community were disappointed

29:16

i think we were hope for after

29:19

his letter and and as the

29:21

that she might be willing

29:24

to to side with the

29:26

tribes and indoors tribal sovereignty

29:28

obviously it's disappointing we'll see what the next

29:31

case brains i mean the difference between the states

29:33

in for team of course they're lot of differences

29:35

but i think the key difference is that this

29:38

case basically of the majority said

29:40

well there's no congressional enactment on points

29:43

and so it's sort of cel back uncommon

29:46

our principles on how to adjudicate

29:48

disputes between tribal and says authority

29:51

the team actually presents i think another

29:53

fight over the balance of tribal

29:55

and state authority but one where congress has explicitly

29:58

spoken and that as a child these

30:00

two federal authority at it's

30:02

core right can congress actually step in

30:04

and arbitrators dispute so there

30:06

is clear tax there is a

30:08

mountain in my view of history and precedent

30:11

that is supports that but i

30:13

, see i mean the question is are they not

30:15

only going to say in the absence of federal support

30:17

them thus the purported

30:20

absence i should stress right and purported absence

30:23

of federal support the they're going to come

30:25

in and side with the states but

30:27

whether they will do that when the federal

30:29

government has explicitly include spoken

30:31

am so you know at this

30:34

at this necessarily the

30:37

protein for sure but it's certainly

30:39

not an encouraging sign

30:40

right well we will obviously be covering that case

30:43

in much more deaths next term when the court

30:45

hears and then decide said greg a blocky

30:47

thank you so much for joining us to break down

30:49

this case is greg is a professor of

30:51

law at stanford and a real expert

30:54

on all matters indian loss x

30:56

again for helping us to

30:58

, here and thanks for taking the

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so the next stop

34:24

i guess it was a previous stop on

34:26

this court's past to

34:28

a recession and the law as it pleases

34:31

was the opinion in kennedy vs bremerton

34:33

school district this is a case

34:35

about coach kennedy and weather at the close

34:38

of a public high school football game he did engage

34:40

in public prayer if you with in reality

34:43

eat or private prayer if your

34:45

brain has been consumed by fox news

34:47

surprising exactly no one the court said

34:50

he could do that whatever that is

34:52

and the school couldn't discipline him i'll

34:55

explain it a second why i'm trying to give

34:57

to alternative versions of the facts and

35:00

the opinion is six three justice

35:02

course it's wrote the majority rather than

35:04

coach cavanaugh interesting

35:07

aren't justice sotomayor wrote the

35:09

descent

35:09

okay so we should explain

35:11

a little bit what liam and to by reference to these

35:14

dueling accounts because the

35:16

majority and dissenting opinions seeming

35:19

to describe entirely different

35:21

sexual universe that's right so steer

35:23

us how the majority that just

35:25

as coursage again authored describes

35:28

his quote mr kennedy pray

35:30

during a period when school employees were free

35:32

to speak with a friend call for a reservation

35:34

at a restaurant check email or

35:36

attend to other personal matters he offered

35:38

his prayers quietly while the students were otherwise

35:41

occupied and yet the descent

35:43

not only

35:44

the woman very different tale

35:46

but also includes pictures

35:49

of

35:49

the kind that are worth you know about

35:51

a thousand words it's of

35:54

the coach kneeling surrounded

35:57

by other kneeling obvious

35:59

praying students in

36:02

uniform

36:03

oh quietly preying

36:06

on the sidelines while students or

36:08

otherwise occupied and

36:10

i think it is helpful to note that

36:13

we have other takes on

36:15

the facts at issue here beyond just

36:17

the competing ones in the majority

36:19

and the dissenting opinion so maybe

36:22

less revisit for a moment the

36:24

way of republican appointee on the

36:26

ninth circuit describes the coaches

36:28

and now just as course itches characterization

36:31

of the fact he describes

36:34

his colleagues on the ninth circuit

36:36

of having basically swallowed

36:39

quote a deceitful narrative of this case

36:41

spun by council for appellant to

36:43

the effect that joseph kennedy abrupt and high school

36:45

football coach was disciplined for holding

36:48

silence private prayers that

36:50

narrative is false i

36:52

mean that's pretty strong language and that

36:54

was no liberal right the judge smith

36:58

on the ninth circuit is a george the bush appointees

37:00

his brother was a republican senator for many

37:02

years he is a quite conservative judge and

37:05

he called us coach kennedy

37:07

and now justice

37:08

worse ages version of the facts he

37:10

false narrative and i think that's

37:12

really telling

37:13

and here is how the descent i just a set

37:15

of my your described the fact in addition

37:17

to including the pictures and people really said

37:19

look at the pictures on

37:22

because they're quite revealing

37:24

so justice sotomayor rights the record

37:26

reveals that kennedy had a longstanding

37:28

practice of conducting demonstrative

37:30

prayers on the fifty yard line of the football

37:32

field kennedy consistently

37:35

invited others to join his prayers

37:37

and for years lead student athletes in prayer

37:39

at the same time and location in

37:41

september of two thousand and sixteen a coach

37:43

from another school's football team and formed the

37:45

school's principal the kennedy had asked

37:47

him and his team to join kennedy

37:50

and prayers therefore she writes

37:52

this case is about whether a school district is

37:54

required to allow one of its employees

37:56

to incorporate a public communicative

37:59

display employees personal religious

38:01

belief into a school

38:03

or that were that displays recognizable

38:06

as part of a longstanding practice at the

38:08

employee administering religion to students

38:12

that the city pictures

38:14

you read the ninth circuit a penny and you reach

38:16

us a sudden my or as account and it's like

38:18

i did not know that the supreme court

38:20

within the business of writing fiction

38:23

they have really expanded their genres

38:26

part of what is so frustrating about this in

38:28

addition to just amy

38:30

, i don't know how to characterize this is

38:32

this sloppiness just a desire

38:34

to reach a particular out com

38:36

a desire to spend a particular narrative

38:38

or what it is but whatever it is

38:42

you basically have to accept

38:44

their pretty specious

38:46

satchel misrepresentations of the case

38:49

going forward going order to try

38:51

and litigate in this area and distinguish

38:53

the next case and say well in that

38:56

case you know the coaches prayers were very

38:58

private notwithstanding the fact

39:00

that in the real world that's not what happens

39:03

it is just like not only are

39:05

we smashing precedence

39:07

less the right we are now the next frontier

39:09

as we are literally just making up facts

39:12

to suit are preferred

39:15

outcome that it actually is i think quite

39:17

starting to see this had

39:20

a blatant mischaracterization that didn't even

39:23

have them the bother to respond

39:26

to the photographs that justice center my orange clued

39:28

in the descend to just sort of says like you

39:31

know we not only get to the same with the wires

39:33

and say what history is we get snap would

39:35

say what sacks are and

39:37

that does feel like pretty

39:39

scary kind of next frontier in

39:42

terms of discourse increasing assertion

39:44

of authority to do all the things including

39:46

apparently like rewrite reality

39:49

ah okay so onto the court's reasoning celts

39:53

background hear this case like person

39:55

versus make and wishes that mean

39:58

school funding case that we previously talk

39:59

no interplay

40:02

between the constitution's free exercise clause

40:04

which protects individual's right to practice that

40:06

religion and the establishment

40:08

cause which in i'm actually no longer

40:10

they exist that says if you read

40:12

as that it prohibits governments

40:15

from establishing religion in

40:17

order to determine whether the establishment clause

40:19

is violated the court has historically apply

40:21

the live pass from a key called lemon vs

40:24

kurtzman and it has

40:26

long been clearer that some current

40:28

and some former justices didn't

40:30

like that cast and

40:32

it what justice course it does in

40:35

this opinion with the test is

40:38

hard to describe it she

40:41

does not explicitly

40:44

overrule

40:45

at least using those words that the

40:47

lemon tests instead

40:50

he

40:51

kind of abandons it

40:53

but sort of done so by claiming

40:56

that the courts has already

40:58

abandoned it and everyone

41:00

should have understood that although

41:03

the core had never explicitly

41:05

said it so let me quote from the

41:07

coursage opinion he basically says the lower

41:09

courts year overlooked

41:11

the fact that disk that long

41:13

ago abandoned lennon and it's endorsement

41:16

test offshoots and

41:18

it the court is just now noting

41:20

something that everybody already

41:23

should have realized which is lana

41:25

no longer supplies the relevant test for

41:27

deciding is something violates the establishment

41:29

clause i mean what does it mean to

41:31

abandon a case

41:33

or at the legal standard it announces

41:36

is that different from overruling a case

41:39

you know in this opinion it seems to entirely

41:41

excuse as to score sets from

41:43

performing a traditional started to say this

41:45

analysis about whether to overrule the case

41:48

and consider the usual factors that are supposed

41:50

to constrain a court's decision about whether to overrule

41:53

the case and i have to say like

41:55

this concept of be

41:57

abandoned precedent that everyone

42:00

no is already abandoned

42:02

is making me quite nervous about what the

42:04

court in the future might say let's

42:06

say about chevron you know the case

42:09

about agencies getting deference on they interpret

42:11

statues or other deceiver cases

42:13

because i can imagine that and opinion

42:16

that me it's look some justices on

42:18

the court don't like chevron and the court

42:20

really has an applied it in a bunch of cases

42:22

so we make clear what are prior

42:24

decisions implied it has been abandoned

42:28

the concept of the seems like a green light

42:30

to the lower federal courts to

42:32

get ahead of the supreme court and

42:34

say oh yeah obviously

42:37

the court has a banned in all

42:39

of these other precedents because

42:41

it's not applying them and

42:43

some justices have criticised san

42:46

with such as

42:46

parallel to chevron because that actually is

42:48

exactly what the court is doing right now he has

42:50

just ignored chevron several administrative

42:53

law cases this term and

42:55

i think you're right maybe they're just laying

42:57

the groundwork to literally do exactly

42:59

this with chevron it's in a couple of

43:01

terms this decision and kennedy

43:03

came down one day shy of the city first

43:06

anniversary of land and and as a sort

43:08

of my your in her descent said

43:10

the court is overruling lennon

43:12

she also described this as the

43:15

service to schools and the young citizens

43:17

they serve as well as to our

43:19

nation's longstanding commitment to

43:21

the separation of church and

43:23

state i think this concept

43:25

of abandonment is very much in keeping with

43:27

the roberts court very chaotic

43:30

approach to precedent and it's

43:32

pattern of drawing totally nonsensical

43:35

distinctions with prior precedent

43:37

you know earlier free exercise

43:39

cases and establishment clause cases have

43:41

seemed themselves as exceptions

43:44

to lemons and yet

43:46

the court is like no like no no no had abandoned

43:48

lennon it's just it's very

43:51

difficult to follow on

43:54

but i guess when you're just doing like

43:56

chaos left and right on this

43:58

is a and product of

43:59

so what is the courts new

44:02

task at it's no longer lenin

44:04

an endorsement on it's basically

44:06

like do original was and instead

44:09

you know in place of asking whether students

44:12

have been coerced or maybe not

44:14

i guess you can sometimes to the coerce and i

44:16

don't know but at least in place of

44:18

asking whether asking whether has

44:20

endorsed religions you just do

44:22

originalism ron it's

44:25

a we have and again and of course like we know

44:27

how selectively originalism can be practice

44:29

so just find historical practices and understanding

44:32

as it's that support either allowing

44:34

or validating a particular practice and

44:37

you're done you got your opinion so that seems to

44:39

be how going forward the court is

44:41

directing courts to

44:43

kind of run their establishment clause

44:45

analyses yeah and in keeping

44:47

with this trend of fucking things up

44:49

in the footnotes you know the court also had this to

44:51

say about the free exercise clause it's

44:53

sad apprentice may prove a free exercise

44:56

violation by showing official

44:58

expressions of hostility to religion a company

45:00

laws burgeoning religious exercise

45:03

this is a totally different standard than

45:05

the court has used in other disparate

45:08

impact cases you know that bird in some

45:10

racial groups relatives to others and the court

45:13

it's just announces this as a legal test

45:15

and it is just against so chaotic

45:18

beside a masterpiece kicks up and just suggesting literally

45:20

just shows that there are some official expression

45:22

of hostility and without any

45:24

further inquiry we're going to set those kinds

45:27

of policies aside i mean that's

45:29

a lot and a big

45:30

change to just shove into a footnote

45:32

and yet

45:33

here we are in terms of what the cortez

45:35

with coach candidates the court

45:37

finds that this school board policy

45:39

either did not permit him to pray during

45:42

games both infringed

45:44

code kennedy's speech rights

45:46

and discriminated against the speech because

45:48

of it's religious characters and

45:51

once again the court says

45:54

that attempting to comply with

45:56

the establishment clause is not

45:58

an acceptable reason

45:59

and justifies

46:02

the print edition on the religious speech

46:04

at issue here are some we're going

46:06

to do a longer summer episode under religion

46:08

he's is there gonna be much more to say about

46:10

this case i'm but for now

46:13

i think that's it we have the to

46:15

rulings that we talked about in the last couple of weeks curse

46:17

in the case involving school funding

46:20

that made it much harder for states to

46:22

decline to find religious schools

46:24

and this week's ruling which makes it much harder

46:26

for public schools to keep religious

46:28

practice out of at least extracurricular

46:31

pivoted and maybe out of public schools

46:33

more broad

46:34

read and the together these opinions

46:36

do mean

46:37

a lot more religion in schools

46:40

and kids' schools and it a

46:42

barely discernible remaining

46:44

wall between church and state

46:47

that

46:48

rick on the ground like

46:50

a couple of them that's

46:52

basically it at least when it comes

46:54

to schooling i think is the take away

46:56

from the last couple of weeks yeah i

46:59

did want to highlight and important concurrence

47:01

in this case just because it suggests

47:04

something that i've expressed some

47:06

concern about and it's a concurrent

47:08

by justice thomas and

47:11

justice thomas rights that in

47:13

this case that is in kennedy's the

47:15

court refrains from deciding whether

47:17

or how public employees

47:19

right under the free exercise

47:22

clause may or may not be different

47:24

from those enjoy and by the general

47:26

public the reason why this is potentially

47:29

significant his government

47:31

employees we usually

47:34

think like will when you're exercising government

47:37

power but you don't possess

47:39

the same constitutional

47:42

rights as a private citizen like usually

47:44

constitutional rights are against the government

47:46

usually constitutional rights i don't empower

47:48

the government's does do things to other

47:50

people but the idea that public

47:53

employees that his government employees

47:55

might possess the same free exercise

47:58

rights as private citizens were the

48:00

theory that clerks

48:03

raised as to why

48:05

notwithstanding oberg befell versus

48:07

hodges the decision recognizing a right to marriage

48:09

equality clerks who had

48:11

religious objections to marriage equality

48:14

nonetheless did not have to

48:16

issue marriage licenses to same sex

48:18

couples and again i just and concern

48:21

you justice alito opinion a goddess to

48:23

separate writing aca this as well the idea that

48:25

the courts as wasn't deciding the scope a public

48:27

employees for exercise right that they are carving

48:30

this out and suggesting it as a profit

48:32

the future interest and that could really limit

48:34

over a foul again even if the court

48:36

does and immediately overall

48:38

at yeah and i mean we should say that court has

48:40

actually been really clear that when it comes to freeze

48:42

right public employees have significantly

48:45

reduced rates as compared to the rest

48:47

of us to this would be yet another example

48:49

of the court embraces thomas theories of

48:51

the l a mission of free exercise

48:54

clause rights above all other kind of

48:56

recognize constitutional right so even

48:58

though the quarter said in cases like our city

49:01

you're not going to be able to have if the same free speech rights

49:04

if you're working for the government as you you know as

49:06

again the discipline of things like that is if you were a private

49:08

citizen and when government could of course never disciplined

49:10

you for saying things and you

49:12

are a public employee and so the

49:15

sort have made crystal clear

49:17

this term it has some hierarchy

49:19

is in it's mind regarding the

49:21

constitutional rights and the free exercise clause

49:24

i guess the second amendment are and the two

49:27

types of constitutional rights a discourse is

49:29

most interested in aggressively press

49:34

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53:05

i guess we should just do a lightning

53:08

round reality do lightning or million

53:10

the remaining cases and as

53:12

we said

53:12

some of these we won't return to

53:14

the first and are lightning round one

53:16

vs united states this is a case about

53:19

the controlled substances act which makes it a federal

53:21

crime accept us off the rise for

53:23

person to knowingly or intentionally distribute

53:25

or dispense a controlled substance the

53:28

case is more specifically about the standard

53:30

proof in those prosecutions it

53:32

arises in cases involving opioids which

53:34

can be prescribed to patients but only for legitimate

53:36

medical purposes when doctors are acting

53:38

in the course of professional practice

53:41

and the question here is whether the government had to show

53:43

that a doctor knowingly or intentionally intended

53:45

to provide drugs without authorization

53:48

the courthouse the that it does that

53:50

once the defendant produces evidence they are authorized

53:53

to dispense a controlled substance like if there a doctor

53:55

the government has to show that the and and knew

53:57

that they were acting in an unauthorized

53:59

after the opinion was by just as prior

54:02

it was six three on that question and

54:04

there was a concurrent elite oh and which thomas and

54:06

barrett join in parts and

54:08

the opinion leans heavily on the background principle

54:11

of mens rea years the idea that a defendant

54:13

has to have a guilty mind with respect

54:15

to all elements of an offense in

54:17

order to be convicted of and

54:21

the concurrence would have said there's a good faith affirmative

54:23

defense instead as the government having to

54:25

prove that the defendant intended

54:28

to exceed the scope of authorized next

54:31

case is concepcion versus united states

54:33

this is important federal sentencing case we covered

54:36

in that in an episode with tiffany

54:38

right formerly of the howard university

54:40

civil rights clinic now white house counsel's

54:42

office and isa and on and macarthur

54:44

justice center she will be visiting at the stanford

54:46

supreme court litigation clinic this upcoming year

54:49

very lucky stanford sit and so check out

54:51

that episode for more information but

54:53

the case concerns the first step and that law

54:55

reduce the penalties for crack cocaine offenses

54:58

and allow courts to be sentence individuals

55:00

who were sent and for certain crack cocaine offensive

55:03

the question here is whether in those recent

55:05

things courts could consider changes

55:07

in the law or the fact that have happened

55:09

since the defendants original sentencing other

55:12

than the first step acts changes

55:14

here for example at the time of mr concepcion

55:17

original sentencing the court had classify

55:19

him as a career offender with multiple

55:21

prior convictions for crimes the violence that

55:23

subject is him to increased sentences

55:26

but subsequent changes and interpretations of

55:28

the law made clear that mr concepcion

55:30

is not a career offend earth and

55:32

therefore not eligible for additional time

55:35

in prison the question was whether courts

55:37

may take that into account or whether they

55:39

should instead blind themselves to the changes

55:41

and place themselves in that position

55:44

that the court was at the original sentencing

55:46

judge sotomayor writing for a majority of five

55:49

justices how that courtney pick those subsequent

55:51

developments into account it was an

55:53

extremely unusual five for

55:55

lineup the three democratic appointees

55:57

together with justices course it's fan

55:59

man this is kevin are

56:02

at the descent for the chief justice justice

56:04

alito and as the spirit curiosity

56:07

this means necessary my or had to opinions

56:09

in january and justices courses and cabin

56:12

are had none leading me to

56:14

wonder the just the sort of my or steal

56:16

this majority from coach kevin i did

56:18

the coach get outplayed by sonia sunshine

56:20

set of my or that could also explain

56:22

why this decision took a little bit longer to release

56:24

even though usually deficit of my or it's one of

56:27

the fastest justices to get her opinions

56:29

out i love the for her i hope that's what happens

56:32

i know me too me too and

56:34

so to super important federal sensing case

56:36

again the bottom line is that and first step

56:38

that cases course may consider subsequent

56:41

changes in the law and the facts as

56:43

a things stand today when a defendant is

56:45

being recent it and we should also add a note of congratulations

56:48

to the loop mcleod on a fantastic when

56:50

and the first he argued at the supreme court

56:52

congratulate i'm ,

56:54

next case in a lightning round is torres vs

56:56

texas department of public safety of

56:58

i wish it were not a lightning round when i

57:00

know due to let's try to

57:02

be pretty soon

57:03

the state here in any case

57:05

the right now we're just going to notice and briefly describe

57:07

at the bottom line conclusion of the court's

57:10

opinion is that when congress is exercising

57:12

it's power to raise and support armies

57:14

can authorize private citizens to sue

57:16

states so the court has

57:18

can

57:19

the that the constitution and at airports

57:21

around the constitution because not like in it

57:23

or anything but that it contains a principle

57:25

of what is called state sovereign immunity it's

57:28

and that means that private citizens are generally

57:30

speaking it's prevented from soon

57:32

states without those states that

57:35

so i would love to go i no longer rant about this

57:37

is he had time that we don't today in the

57:39

court's decisions in this area are based on

57:41

hand waving flimsy history and political

57:44

theory that is in my view liquidy at odds

57:46

with our constitutional system like the idea

57:49

that states are somehow above private

57:51

citizens and it would be beneath the dignity

57:53

of states task to answer suits by or

57:55

from like lowly private citizens

57:58

but in a series of cases the court has said

57:59

oh yeah you know stay sovereign immunity is

58:02

generally true on but for some

58:04

special congressional powers

58:06

it was in the plan of the

58:08

convention that stays consented

58:10

to being sued as we suggested

58:12

when we previewed the case this whole plan

58:15

of the convention line of argument impales

58:17

some pretty loose history and historic

58:19

sizing that is very loosely

58:21

tethered to reality on and invites

58:24

the court to say well if you squint super

58:26

hard and look at the tax and history

58:29

states agreed to be sued under some

58:31

powers but not others because we can tell

58:33

that some powers of the federal government or like really

58:36

important and are supposed to be really supreme

58:39

those are the court has said states can be

58:41

sued by private parties when congress legislates

58:43

under the bankruptcy clause as

58:45

well as when congress is exercising his powers

58:47

of eminent domain this and here it

58:49

says the same thing about when congress exercises

58:52

it's powers to raise and support army is

58:54

the penis five for bri rights the majority

58:57

the chief justice and calvin are with them because they

58:59

are very into war powers

59:01

kagan concurs basically saying this area

59:03

of law is a mess but i am trying to follow

59:06

the course cases because some of us care

59:08

about that it being

59:10

in the descent isn't imports

59:12

fine about where she is on the

59:14

state sovereignty issues i think more profit

59:16

okay so nut case in our lightning

59:18

round is biden versus texas this

59:20

is a challenge to president binds efforts

59:22

to n b trump era remain in mexico

59:25

policy that sent asylum applications to

59:27

wait in mexico whether cases were being processed

59:30

the supreme court ruled that actually federal

59:32

judges do not set to oversee the president's

59:34

diplomatic negotiations with another country

59:37

and foreign policies this is

59:39

a case where a district court on

59:41

a judge nominee that by donald trump invalidated

59:44

the recession of the remain in mexico

59:46

policy and then required the biden

59:48

administration to negotiate with mexico

59:50

to reinstitute the program and keep the

59:52

court abreast of as to their she asians and

59:55

then assists circuit on appeal came up

59:57

with this like clinton that he john roberts

59:59

made me do the wrong seven a new policy

1:00:01

the administration had issued after

1:00:04

the district court struck down there assists and for the

1:00:06

first time wasn't actually new policy

1:00:08

and with their for also invalid

1:00:10

the way and that sounds insane

1:00:13

or you're confused like it is insane

1:00:15

and it is confusing like if not you

1:00:18

it's that on the

1:00:19

robert maybe do it would be don't have time to fully explain

1:00:22

it

1:00:22

that roberts basically you know did of

1:00:24

version of this to the darpa

1:00:26

rescission that that the trump administration tried

1:00:29

to effect and so this was like he turnabout

1:00:31

is fair play if roberts is going to strike down

1:00:33

things trump try the do then we lower

1:00:35

courts can trace down what by

1:00:37

the trying to do isn't that the basic logic so

1:00:39

that's completely the last it's because of course

1:00:42

that trump you know second recession

1:00:44

of doc i was not actually a second recession

1:00:46

of dhaka because after course and algae

1:00:48

it for the first time the trump administration

1:00:50

was like we are not making a new policy

1:00:53

we are instead reaffirming are all policy

1:00:55

for whereas after the court struck down the first physician

1:00:57

of money and mexico of the by the

1:00:59

ministration said here is our new policy

1:01:02

in response to all of your insane arguments

1:01:04

of

1:01:04

first line on so despite

1:01:07

it being ridiculous it was forced to do it it's still

1:01:09

did a totally new policy making and

1:01:11

they're not the cases are not on all fours

1:01:13

are not on twos they're completely distinct

1:01:16

this and yet that is the basis on which these

1:01:18

lower courts tried to force biden to keep the policy

1:01:20

go and as predicted

1:01:22

we did in fact find his his circuit opinion

1:01:24

that was it turns out just barely

1:01:27

too crazy for the supreme court

1:01:29

on so the chief justice wrote for

1:01:31

fi is maybe five and a

1:01:33

half deficit depending on how you count

1:01:35

which will explain and a second on

1:01:37

that five justices that actually federal law

1:01:40

does not require presidential administrations

1:01:42

to adopt the remain in mexico policies

1:01:44

as none of them had ever done before the trump

1:01:46

administration on and that the district

1:01:49

court was wrong to install itself as a commander

1:01:51

in chief and chief executives on

1:01:53

so i said five and a half because the

1:01:55

decision is five for with the three democratic

1:01:57

appointees together with

1:01:59

kavanagh in the chief justices majority

1:02:02

justice alito right to dissent joined by

1:02:05

justices thomas and courses going full

1:02:07

the enough alito and embracing with this

1:02:09

circuit ruling and then the

1:02:11

out of know to passage in the lido the sandwich is like

1:02:13

fall on fox news he says in two thousand and

1:02:15

eighteen a surge of for migrants

1:02:18

attempted to enter the united states unlawfully

1:02:20

at the united states mexico border you

1:02:22

can literally like the like cable news

1:02:24

higher on the larynx caravan of migrants

1:02:26

are trying to bottom of his opinions that's the

1:02:28

energy of the opinion start to finish

1:02:31

his but as a parent wrote a separate to send

1:02:33

that was joined by the justice is

1:02:36

indeed a leader descent possesses barrett

1:02:38

said she would not have reached the mayor as

1:02:40

because she didn't believe the court had jurisdiction

1:02:43

but in a sentence britain only for herself

1:02:45

she said if she did reach the

1:02:47

merits then she agrees with the majority's

1:02:50

analysis of the statue of

1:02:53

in one line by the chief

1:02:55

justice from his majority

1:02:57

opinion that i did want to highlight responding

1:02:59

to the alito descent he writes under

1:03:01

the actual text of the statute justice

1:03:04

alito interpretation is practically self

1:03:06

refuting you know justice

1:03:08

alito is going to be steaming that of as as for

1:03:10

the next ten years and he's

1:03:12

in be getting some speeches about how the

1:03:14

chief justice has even further ruined the court

1:03:16

on so app

1:03:19

expected or predicted this decision as decision as

1:03:21

when for the biden administration at sense

1:03:23

the case back down to the district court and notes

1:03:25

that there are other administrative law challenges

1:03:27

to the biden and minister says

1:03:30

recession of remain in mexico that remain to

1:03:32

be worked out and just haven't us concurrence

1:03:34

headlight add some of

1:03:36

we didn't wanna know a few other

1:03:38

things that are in some ways a dent

1:03:40

as to some things we talked about previously

1:03:43

on the podcast i am not

1:03:45

as gifted see and transitions as

1:03:47

melissa so my attempt at

1:03:49

a transition is just speaking

1:03:52

, us tax free court other so

1:03:54

have held that was not good but i appreciate

1:03:56

your support an empty

1:03:58

want to note a develop

1:03:59

and regarding the supreme court's opinion

1:04:02

in san vs martinez ramirez

1:04:04

which was the decision in which the supreme court

1:04:06

said yes the state of points

1:04:08

you a second ineffective lawyer

1:04:10

who fails to introduce evidence that your first

1:04:12

lawyer was in affected that's your fault and you

1:04:15

can't introduce evidence about that in

1:04:17

federal court affects so

1:04:19

in justice thomas

1:04:21

is majority opinion he

1:04:24

wrote that respond and

1:04:26

said is the descendants do

1:04:28

not dispute and therefore

1:04:30

can see it that they're

1:04:33

hideous petition sale on the state

1:04:35

court record alone that is he wrote

1:04:37

that the defendants do not dispute and can

1:04:39

see it that is they can't introduce

1:04:41

this new evidence they lose

1:04:44

their heaviest citizens wow

1:04:46

the lawyers for martinez rivieres

1:04:49

and jones filed a motion to modify

1:04:51

the opinion to read instead

1:04:54

that the court assumes without

1:04:56

deciding for purposes of

1:04:58

this decisions that the hideous

1:05:00

petitions would fail on the secret record

1:05:03

alone if they couldn't introduce the evidence they

1:05:05

filed a motion to modify the supreme

1:05:07

court's opinion and the state of arizona

1:05:09

consented to their request

1:05:12

to modify the opinion why

1:05:15

because they never actually conceded

1:05:17

that they're hideous petitions would fail

1:05:20

if they were just judged by

1:05:22

the evidence in the state court record the

1:05:25

supreme court's response

1:05:27

then either motion to modify

1:05:29

the opinion i mean there is literally

1:05:32

unhinged ah unhinged

1:05:35

an inaccurate this stuff i don't

1:05:37

know where he got this idea

1:05:39

injustice thomas' majority opinion

1:05:42

that seems to say it's the hades petitioners

1:05:44

breathing lose under this new standard even

1:05:46

though they did no such thing they did not agree

1:05:49

and i truly

1:05:52

do not know what to make of

1:05:54

this we made an obvious

1:05:56

mistake and

1:05:58

and we just refuse

1:05:59

to correct it

1:06:01

it's stunning it is truly stunning

1:06:04

the corporate little errors as opinions

1:06:06

all the time for his his opinion

1:06:08

did last time when you're like you're invited

1:06:11

to contact the reporter if you note an

1:06:13

error in the opinion and we

1:06:15

all know there are sometimes pretty significant

1:06:18

changes between the same opinion this and

1:06:20

the final in which not in the us reports

1:06:22

for like five years these days

1:06:25

and i'm actually kind of at

1:06:27

a loss that just how stunningly

1:06:29

on interested in accuracy the

1:06:32

court appears to be based on this refusal

1:06:34

i'm eager to again spell this out

1:06:37

these are death penalty cases

1:06:40

which the quit seems to have just announced

1:06:43

the defendants agree they move

1:06:46

that is you have attempted to like was all

1:06:48

the cases under this new standard

1:06:50

even though the descendants did

1:06:53

not agree they lost the descendants should

1:06:55

remain free and open and

1:06:57

hopefully the fact that the state you know consented

1:07:00

to their requests to modify the opinion and seems

1:07:03

to have recognized the courts

1:07:05

error means that lower courts will

1:07:08

actually decide

1:07:09

you know if they do in fact was under the standard but

1:07:11

it is just bizarre amy

1:07:14

and like i guess having five to

1:07:16

six horsemen of the apocalypse me and you never

1:07:18

have to say you're sorry or or

1:07:20

wrong way and you

1:07:22

don't even have to say it you can just quietly

1:07:24

change the opinion and opinion the courts

1:07:26

website but that seems like

1:07:28

a

1:07:28

too far i mean it's really just wild arms

1:07:31

okay last couple pieces of business one

1:07:33

we got an important order in a louisiana

1:07:36

redistricting case so back round here is

1:07:38

there is a one hundred and fifty two page

1:07:40

district court

1:07:44

the district in ways that diluted

1:07:46

the votes of racial minorities in violation

1:07:49

of the voting

1:07:49

like in marches the supreme court

1:07:52

and by a six three vote or at least seemingly

1:07:54

by six three votes

1:07:56

the courts these the decision invalidating

1:07:59

louisiana

1:07:59

that justice is briar sotomayor

1:08:02

and kagan note their to sense

1:08:04

the and it that

1:08:06

the curtain putting that into

1:08:08

force a map

1:08:11

that violates the voting rights act

1:08:13

and will you add that to but the court is already done in

1:08:15

alabama and your job and that's

1:08:17

not even touching what the ports it to the state

1:08:20

legislative madison wisconsin but

1:08:22

at least just at the federal level we now have three

1:08:24

federal majority minority congressional

1:08:27

seats that lower courts have

1:08:29

found were required by the voting rights act

1:08:31

that the supreme court has by the at taken

1:08:34

away so the underground consequences

1:08:36

are incredibly significant you

1:08:38

can't violate the voting rights act is it's

1:08:40

own rights act doesn't exist

1:08:42

at an end of the bow and he

1:08:44

declared unconstitutional

1:08:47

i see enough but in this kind of like

1:08:49

weird time travel with the court is doing

1:08:51

here basically is implementing

1:08:53

a decision it has not yet issued but

1:08:55

knows that it will substantially

1:08:58

diluting the force of what remains

1:09:00

of the voting rights act

1:09:02

so the supreme court is poised to

1:09:04

substantially narrow and

1:09:06

a mood the scope of the voting rights act

1:09:09

protections against voter

1:09:11

dilution in merrill vs milligan

1:09:13

next term that the alabama case

1:09:15

but i think this case any and doesn't

1:09:17

even seem to line up with alabama's

1:09:20

theories for narrowing the voting

1:09:22

rights act in that case it's a little

1:09:24

bit technical inside a don't want to explain pie

1:09:26

and on but you know it in

1:09:28

that case alabama has like love

1:09:31

you can't consider race at all

1:09:33

when you're asking whether this boat dilution you

1:09:35

just have to come up with these completely alternative

1:09:37

maps without considering race and oh

1:09:40

yes those maps with yields you know another majority

1:09:42

minority districts is that called for

1:09:44

by the voting rights act by it's under that

1:09:46

standard there's still vote

1:09:48

dilution in louisiana so i don't even

1:09:51

know what they're doing here are young and

1:09:53

of course they don't tell us because they don't know because

1:09:56

you have the five or six horseman like you don't

1:09:58

have to explain yourself a thing that is

1:10:00

bad as the just of last thing to

1:10:02

note the court granted is just after

1:10:05

issuing it's last opinions of the term a

1:10:07

case that should make us all very scared

1:10:10

harper vs more that's the case about these

1:10:12

so called independent state legislature

1:10:15

theory really san sick

1:10:17

as we've previously referred to as we're

1:10:19

gonna put gonna pin a pin both case and

1:10:21

issue and come back to at the summer but

1:10:23

it's an ominous sign that they've taken this case

1:10:26

her voice

1:10:27

ah

1:10:29

that is probably all of the news

1:10:31

we have time for today

1:10:34

security

1:10:35

he is a crooked media production hosted

1:10:37

an executive produced by me real

1:10:39

it and then melissa marie and kate shot

1:10:41

produced and edited by melody rowell audio

1:10:44

engineering by kyle sakhalin music

1:10:46

by any cooper production support for my

1:10:48

martinez gerard and are you sure

1:10:51

it's digital support from amelia monty

1:10:53

and summer intern support from a new

1:10:55

scott chatter drink orange

1:10:57

agree to overturn roe versus

1:11:00

wade

1:11:03

hundred millions of americans

1:11:05

you're angry were

1:11:07

hundred

1:11:09

recruiting

1:11:11

to electing personally can't twenty

1:11:14

twenty two and building up across the majority

1:11:16

over the long term you can find everything

1:11:18

you need to fight back and our finance

1:11:21

action plan have a don't have america

1:11:23

dot com