1 00:00:03,200 --> 00:00:08,000 Speaker 1: This is Bloomberg Law with June Brusso from Bloomberg Radio. 2 00:00:10,320 --> 00:00:13,600 Speaker 2: The legal fight over the abortion pill goes on. We 3 00:00:13,800 --> 00:00:16,200 Speaker 2: believe that we were prevailing the courts. We believe that 4 00:00:16,239 --> 00:00:18,520 Speaker 2: the law is on our side, and we're going to 5 00:00:18,560 --> 00:00:20,880 Speaker 2: continue to fight for millions of women across the country. 6 00:00:21,040 --> 00:00:24,000 Speaker 2: That's White House Press Secretary Kareem Jean Pierre. 7 00:00:24,320 --> 00:00:24,480 Speaker 3: As. 8 00:00:24,520 --> 00:00:29,120 Speaker 2: The controversial case over mifipristone returned to the Fifth Circuit 9 00:00:29,160 --> 00:00:33,040 Speaker 2: Court of Appeals after the Supreme Court last Friday blocked 10 00:00:33,080 --> 00:00:37,000 Speaker 2: to Texas judges restrictions from taking effect, keeping the drug 11 00:00:37,080 --> 00:00:40,840 Speaker 2: fully available while the legal fight moves forward. My guest 12 00:00:40,920 --> 00:00:44,080 Speaker 2: is constitutional law expert Stephen Vladik, a professor at the 13 00:00:44,240 --> 00:00:47,559 Speaker 2: University of Texas School of Law. Does the Supreme Court's 14 00:00:47,680 --> 00:00:52,599 Speaker 2: decision vindicate the Court's majority opinion in Dobbs, saying that 15 00:00:53,240 --> 00:00:58,160 Speaker 2: questions about abortion would be left to the political process. Although, 16 00:00:58,360 --> 00:01:00,800 Speaker 2: when we'll get to this in a moment, the justice 17 00:01:00,840 --> 00:01:05,200 Speaker 2: who wrote that opinion, Samuel Alito, dissented here. Strangely enough, I. 18 00:01:05,160 --> 00:01:07,680 Speaker 4: Don't really think that's a great framing. Is only because 19 00:01:07,720 --> 00:01:10,440 Speaker 4: I think it reads a lot more into this unsigned, 20 00:01:10,480 --> 00:01:13,640 Speaker 4: unexplained order than is reasonable under the circumstances. I think 21 00:01:13,680 --> 00:01:16,600 Speaker 4: it'll be easier to say that if the Court ultimately 22 00:01:16,680 --> 00:01:19,440 Speaker 4: ends up taking this case on the merits and ends 23 00:01:19,520 --> 00:01:23,560 Speaker 4: up reversing Judge Kasmerican siding with the federal government. All 24 00:01:23,600 --> 00:01:27,000 Speaker 4: that I m Friday's order really underscores is that there 25 00:01:27,080 --> 00:01:30,039 Speaker 4: was a majority of justices who bought sort of the 26 00:01:30,040 --> 00:01:33,800 Speaker 4: irreparable harm argument. Who bought that. You know, it really 27 00:01:33,840 --> 00:01:38,319 Speaker 4: would cause chaos and disruption if Judge Chasmerics order were 28 00:01:38,360 --> 00:01:40,480 Speaker 4: allowed to go into effect while the case works as 29 00:01:40,520 --> 00:01:42,959 Speaker 4: way through the court. In that respect, student actually strikes 30 00:01:43,000 --> 00:01:46,640 Speaker 4: me as something of an old school emergency intervention from 31 00:01:46,640 --> 00:01:48,880 Speaker 4: the justices, where it really is sort of purely about 32 00:01:48,880 --> 00:01:52,600 Speaker 4: the equities and not necessarily reflective of you on the merits. 33 00:01:53,160 --> 00:01:58,160 Speaker 2: So let's talk about that dissent by Alito. In your newsletter, 34 00:01:58,200 --> 00:02:01,840 Speaker 2: you discussed three claims Elito made in his descent. First, 35 00:02:01,920 --> 00:02:06,200 Speaker 2: his bitter rant about the shadow docket, where he cachede 36 00:02:06,240 --> 00:02:09,880 Speaker 2: on Justices Elena Kaig and Sonya Soto Mayor and Amy 37 00:02:09,919 --> 00:02:10,720 Speaker 2: Cony Barrett. 38 00:02:11,000 --> 00:02:14,920 Speaker 4: Justice Alito has been very sensitive to criticisms of the 39 00:02:14,919 --> 00:02:17,200 Speaker 4: shadow docket. This is not the first time he gave 40 00:02:17,240 --> 00:02:19,840 Speaker 4: a whole speech at Notre Dame Law School in September 41 00:02:19,880 --> 00:02:22,240 Speaker 4: of twenty twenty one, right in the middle of the 42 00:02:22,240 --> 00:02:25,640 Speaker 4: first big public backlash after the Court's ruling in the 43 00:02:25,680 --> 00:02:28,359 Speaker 4: Texas six week abortion ban case. You know, I think 44 00:02:28,400 --> 00:02:32,919 Speaker 4: he has this sense that those who criticize the Court's 45 00:02:32,960 --> 00:02:36,799 Speaker 4: increased use of emergency orders of unsigned, unexplained rulings in 46 00:02:36,880 --> 00:02:40,520 Speaker 4: recent years to change the status quo are really objected 47 00:02:40,639 --> 00:02:44,520 Speaker 4: to intervention as such, as opposed to a more nuanced 48 00:02:44,520 --> 00:02:47,400 Speaker 4: story about when the Court's intervening and why, and so 49 00:02:47,440 --> 00:02:50,560 Speaker 4: from his perspective, you know, when justices who have been 50 00:02:50,600 --> 00:02:56,240 Speaker 4: critical of prior intervention are nevertheless voting to intervene, as 51 00:02:56,360 --> 00:02:58,680 Speaker 4: the majority did on Friday night, you know, to him, 52 00:02:58,720 --> 00:03:02,400 Speaker 4: that's hypocrisy. I think that's ironic, and at least two respects. First, 53 00:03:02,560 --> 00:03:05,880 Speaker 4: he uses that hypocrisy to justify hypocrisy of his own. 54 00:03:06,200 --> 00:03:09,040 Speaker 4: I mean, he expressly says, you know, I didn't agree 55 00:03:09,080 --> 00:03:10,760 Speaker 4: with them then, but if they're going to do it, 56 00:03:10,800 --> 00:03:12,960 Speaker 4: then I'm going to do what they did. But the 57 00:03:12,960 --> 00:03:15,880 Speaker 4: second is I think that just really really sort of 58 00:03:16,000 --> 00:03:19,880 Speaker 4: marginalizes what the criticisms of the Shato docket have been, 59 00:03:20,080 --> 00:03:23,760 Speaker 4: which is not that the court is ever intervening, right. 60 00:03:23,760 --> 00:03:27,079 Speaker 4: I mean, any appellate court is going to have circumstances 61 00:03:27,080 --> 00:03:30,080 Speaker 4: where it has to intervene early in the case to 62 00:03:30,120 --> 00:03:34,079 Speaker 4: preserve the status quo pending appeal. That's not new, that's 63 00:03:34,120 --> 00:03:38,120 Speaker 4: not exceptional. Rather, the criticisms, at least from people like me, 64 00:03:38,840 --> 00:03:41,160 Speaker 4: have been that the way the Court has been using 65 00:03:41,200 --> 00:03:43,720 Speaker 4: this power in the last five or six years has 66 00:03:43,800 --> 00:03:47,560 Speaker 4: been in defiance of historical norms for when the court 67 00:03:47,600 --> 00:03:52,000 Speaker 4: should intervene, have been in defiance of the procedural and 68 00:03:52,160 --> 00:03:57,160 Speaker 4: jurisdictional rules governing when the court can should intervene, and 69 00:03:57,520 --> 00:04:01,360 Speaker 4: worst of all, have been inconsistent in when the Court 70 00:04:01,360 --> 00:04:04,200 Speaker 4: has intervened in ways that really don't map on to 71 00:04:04,320 --> 00:04:08,560 Speaker 4: any coherent, neutral legal principle so much as it maps 72 00:04:08,600 --> 00:04:12,160 Speaker 4: on to the partisan valance of the dispute. That's the criticism. Now, 73 00:04:12,200 --> 00:04:14,400 Speaker 4: folks may not agree with that criticism. 74 00:04:14,440 --> 00:04:15,240 Speaker 1: That's fine. 75 00:04:15,800 --> 00:04:18,839 Speaker 4: But I think what's frustrating about Alito's dissent is that 76 00:04:19,200 --> 00:04:22,520 Speaker 4: he's basically knocking down a straw man when he says, 77 00:04:22,680 --> 00:04:25,479 Speaker 4: you know, you guys have been opposed to intervention, and 78 00:04:25,560 --> 00:04:27,760 Speaker 4: yet you're doing it here like that's not what the 79 00:04:27,800 --> 00:04:28,840 Speaker 4: conversation has been. 80 00:04:29,240 --> 00:04:33,400 Speaker 2: He also says that the Biden administration has unclean hands, 81 00:04:33,440 --> 00:04:34,400 Speaker 2: which is a legal term. 82 00:04:34,480 --> 00:04:37,760 Speaker 4: Explain that sort of reinforcing I think the view of 83 00:04:37,839 --> 00:04:40,760 Speaker 4: Friday's intervention that this was really about the equities. When 84 00:04:40,760 --> 00:04:43,520 Speaker 4: a court is asked to intervene at an early stage 85 00:04:43,520 --> 00:04:45,680 Speaker 4: to either grant a stay or list to stay, what 86 00:04:45,839 --> 00:04:47,960 Speaker 4: is really supposed to do is balance the equities, which is, 87 00:04:48,000 --> 00:04:50,800 Speaker 4: you know, who would be harmed more by the two 88 00:04:50,880 --> 00:04:53,080 Speaker 4: competing rules we could hand down and by the two 89 00:04:53,160 --> 00:04:56,440 Speaker 4: competing sort of universes we could create while this case 90 00:04:56,480 --> 00:04:58,560 Speaker 4: makes its way through the courts, and as an exercise 91 00:04:58,600 --> 00:05:01,800 Speaker 4: of equitable power, it is by the idea that like 92 00:05:02,000 --> 00:05:05,359 Speaker 4: parties that are acting badly should not be entitled to release. 93 00:05:05,440 --> 00:05:08,080 Speaker 4: So one of his arguments for why the FDA should 94 00:05:08,120 --> 00:05:10,760 Speaker 4: not have been entitled to his day is because he 95 00:05:11,160 --> 00:05:15,720 Speaker 4: believes he maintains that the irreparable harm that the government 96 00:05:15,800 --> 00:05:18,600 Speaker 4: said was going to result from allowing Chasmerics ruling to 97 00:05:18,640 --> 00:05:21,320 Speaker 4: go into effects was at least to some degree created 98 00:05:21,440 --> 00:05:25,320 Speaker 4: by the government through its litigation behavior. In the other 99 00:05:25,920 --> 00:05:28,720 Speaker 4: myth Ofpristone case, the one that's pending in the Eastern 100 00:05:28,760 --> 00:05:32,120 Speaker 4: District of Washington and Spokane. And you know what's remarkable 101 00:05:32,120 --> 00:05:35,480 Speaker 4: about that claim, June is, First, I think there are 102 00:05:35,520 --> 00:05:38,839 Speaker 4: any number of ways in which Judge Chasmerics ruling would 103 00:05:38,920 --> 00:05:42,159 Speaker 4: have creative chaos all on his own, And he doesn't 104 00:05:42,200 --> 00:05:44,760 Speaker 4: dispute that. He just suggests that the government's argument was 105 00:05:44,839 --> 00:05:49,000 Speaker 4: about chaos as between the conflict between Chasmartics ruling and 106 00:05:49,040 --> 00:05:52,440 Speaker 4: the Spokane ruling. But second, the things he accuses the 107 00:05:52,480 --> 00:05:56,719 Speaker 4: government of doing are factually incorrect. He says the government 108 00:05:56,800 --> 00:06:01,159 Speaker 4: did not appeal the Spokane ruling. Well, that time hasn't 109 00:06:01,240 --> 00:06:03,680 Speaker 4: run yet. The government still has lots of time to appeal, 110 00:06:03,720 --> 00:06:07,240 Speaker 4: and I suspective will. He said the government opposed intervention 111 00:06:07,880 --> 00:06:11,320 Speaker 4: by seven read states in that case, implying that like 112 00:06:11,440 --> 00:06:15,320 Speaker 4: the government tries to prevent them from appealing that decision. 113 00:06:15,720 --> 00:06:18,680 Speaker 4: He doesn't tell the reader that actually the intervention request 114 00:06:18,720 --> 00:06:21,200 Speaker 4: had nothing to do with an appeal and actually came 115 00:06:21,279 --> 00:06:24,080 Speaker 4: even before the injunction was issued in that case. So 116 00:06:24,400 --> 00:06:27,200 Speaker 4: it's a remarkable series of claims, Dune, because it's not 117 00:06:27,400 --> 00:06:31,120 Speaker 4: just that they are in some respects hypocritical and inconsistent 118 00:06:31,160 --> 00:06:33,479 Speaker 4: with his own prior behavior, but he is based in 119 00:06:33,600 --> 00:06:37,400 Speaker 4: his arguments on students that are just not true, and 120 00:06:37,440 --> 00:06:40,600 Speaker 4: indeed on points that have plenty of receipts that can 121 00:06:40,640 --> 00:06:42,200 Speaker 4: be deployed to push back against them. 122 00:06:43,120 --> 00:06:45,479 Speaker 2: So what hit me the most when I read this, 123 00:06:45,680 --> 00:06:49,800 Speaker 2: What I found astonishing is this sentence. The government has 124 00:06:49,839 --> 00:06:53,000 Speaker 2: not dispelled legitimate doubts that it would even obey an 125 00:06:53,080 --> 00:06:56,159 Speaker 2: unfavorable order in these cases, much less that it would 126 00:06:56,240 --> 00:06:59,839 Speaker 2: choose to take enforcement actions to which it has strong objection. 127 00:07:00,800 --> 00:07:02,640 Speaker 2: I don't know where he got that idea that the 128 00:07:02,680 --> 00:07:05,680 Speaker 2: Biden administration was not going to obey a court order. 129 00:07:07,520 --> 00:07:09,240 Speaker 4: Well, I mean, I fear that he got that from 130 00:07:09,440 --> 00:07:11,880 Speaker 4: right wing media. But let's back up the second right. 131 00:07:11,920 --> 00:07:14,320 Speaker 4: I mean, so the unclean hands argument is why he 132 00:07:14,440 --> 00:07:17,480 Speaker 4: said the FBA was not enteled to emergency release. But 133 00:07:17,480 --> 00:07:21,000 Speaker 4: there was another party in this case, Danko Laboratories, one 134 00:07:21,040 --> 00:07:24,680 Speaker 4: of the two US sponsors or distributors of mister Pristone. 135 00:07:24,960 --> 00:07:27,239 Speaker 4: And Danko said, you know, hey, we're not the government. 136 00:07:27,520 --> 00:07:29,800 Speaker 4: We're just a company with the bottom line, and if 137 00:07:29,840 --> 00:07:32,640 Speaker 4: you allow Chasmeric's rule and to go into effect, our 138 00:07:32,680 --> 00:07:34,560 Speaker 4: bottom line is going to take a huge hit. And 139 00:07:34,600 --> 00:07:36,560 Speaker 4: Alito just sort of waves his hands and says, well, 140 00:07:36,720 --> 00:07:39,200 Speaker 4: you know, the Biden administration is not going to prosecute 141 00:07:39,280 --> 00:07:44,440 Speaker 4: you for basically for violating Judge Chasmeric's order. And you know, dude, first, 142 00:07:44,480 --> 00:07:47,240 Speaker 4: that's a remarkable position to take in the abstract that 143 00:07:47,520 --> 00:07:50,840 Speaker 4: you know, a company is not harmed because it might 144 00:07:50,920 --> 00:07:53,640 Speaker 4: not be prosecuted for breaking the law. Like, hey, company, 145 00:07:53,680 --> 00:07:56,600 Speaker 4: break the law, You'll be fine. Even if Danko were 146 00:07:56,640 --> 00:07:59,680 Speaker 4: inclined to take such a cavalier approach to the rule 147 00:07:59,680 --> 00:08:04,120 Speaker 4: of law. Danko has counter parties, Danko has insurers, Danko 148 00:08:04,240 --> 00:08:09,160 Speaker 4: has clients who might not be similarly disposed towards the law. 149 00:08:09,600 --> 00:08:11,880 Speaker 4: And so you know, even in the abstract, it's a 150 00:08:11,880 --> 00:08:15,640 Speaker 4: remarkable claim. But again, the factual basis for it is 151 00:08:15,680 --> 00:08:18,520 Speaker 4: just completely missing. So, you know, let's talk about who 152 00:08:18,600 --> 00:08:22,000 Speaker 4: has encouraged the Biden administration to ignore an adverse rule 153 00:08:22,000 --> 00:08:26,120 Speaker 4: in this case, Senator Wyden from Oregon, Congresswoman Ocasio Cortes 154 00:08:26,120 --> 00:08:29,560 Speaker 4: from New York, Congresswoman Nancy Mace, a Republican, we might add, 155 00:08:29,840 --> 00:08:32,560 Speaker 4: members of Congress. There is not only no one in 156 00:08:32,600 --> 00:08:35,240 Speaker 4: the executive branch who has even hinted that the Biden 157 00:08:35,280 --> 00:08:38,680 Speaker 4: administration would decline to comply. But in response to those 158 00:08:38,720 --> 00:08:42,560 Speaker 4: congressional statements, the White House Press secretary specifically said, we 159 00:08:42,640 --> 00:08:45,320 Speaker 4: are not listening to them. We are going to comply. 160 00:08:45,880 --> 00:08:48,320 Speaker 4: So when Justice Alito just says, you know, the government 161 00:08:48,320 --> 00:08:51,800 Speaker 4: has done nothing to dispel legitimate doubts, what else could 162 00:08:51,800 --> 00:08:54,880 Speaker 4: the government do and where are those doubts coming from? 163 00:08:54,880 --> 00:08:57,319 Speaker 4: And I think you know what's telling about that passage 164 00:08:57,320 --> 00:08:59,960 Speaker 4: in the opinion is that he doesn't cite any sources. 165 00:09:00,080 --> 00:09:03,520 Speaker 4: There's no authority provided in support of that statement. More fundamentally, 166 00:09:03,520 --> 00:09:05,520 Speaker 4: I mean, June, let's just be clear, it has been, 167 00:09:05,720 --> 00:09:09,959 Speaker 4: by almost anyone's reckoning, one hundred and sixty two years 168 00:09:10,400 --> 00:09:13,160 Speaker 4: since the last time a president the clients to comply 169 00:09:13,320 --> 00:09:16,320 Speaker 4: with a federal court order, and that was President Lincoln 170 00:09:16,360 --> 00:09:18,200 Speaker 4: in the middle of the Civil War as part of 171 00:09:18,200 --> 00:09:20,760 Speaker 4: the fight with Chief Justice Roger Brooks. Tawny, and I 172 00:09:20,800 --> 00:09:24,440 Speaker 4: think it's remarkable not only because it was a legally 173 00:09:24,520 --> 00:09:28,079 Speaker 4: irrelevant argument for Justice Alitos to make, but because the 174 00:09:28,160 --> 00:09:32,120 Speaker 4: only possible factual reason to make that claim is because 175 00:09:32,320 --> 00:09:37,280 Speaker 4: you are crediting conspiracy theorists in right wing media more 176 00:09:37,280 --> 00:09:40,640 Speaker 4: than your credit in the official spokesperson of the Executive Branch. 177 00:09:40,760 --> 00:09:44,480 Speaker 2: The Fifth Circuit is going to hear arguments on May seventeenth, 178 00:09:44,760 --> 00:09:47,880 Speaker 2: but it is the most conservative of the circuits, and 179 00:09:48,280 --> 00:09:51,680 Speaker 2: is it likely to change its opinion, which it expressed 180 00:09:51,679 --> 00:09:54,679 Speaker 2: pretty thoroughly in a forty two page decision. 181 00:09:55,200 --> 00:09:57,360 Speaker 4: I think it might. So let's be clear the panel 182 00:09:57,440 --> 00:10:00,559 Speaker 4: that only stayed part of the Judge Kasmaric ruler. First 183 00:10:00,559 --> 00:10:03,079 Speaker 4: it was divided two to one, and second June, that 184 00:10:03,160 --> 00:10:05,640 Speaker 4: won't be the same panel that here's the government and 185 00:10:05,720 --> 00:10:09,079 Speaker 4: Danko's appeals on May seventeenth, So you know, first it's 186 00:10:09,120 --> 00:10:11,040 Speaker 4: going to be different judges who are going to hear 187 00:10:11,080 --> 00:10:14,000 Speaker 4: this appeal. Second, these judges now have the benefit of 188 00:10:14,120 --> 00:10:16,920 Speaker 4: knowing that there's a majority of Supreme Court justices who 189 00:10:17,000 --> 00:10:20,000 Speaker 4: are not willing to let Judge Kasmeric's order, even as 190 00:10:20,040 --> 00:10:22,720 Speaker 4: modified by the Fifth Circuit, go into effect. And third, 191 00:10:22,920 --> 00:10:26,360 Speaker 4: as folks have had time to react to Judge Chasmeric's order, 192 00:10:26,400 --> 00:10:28,120 Speaker 4: I mean it was keep in mind, is even today 193 00:10:28,200 --> 00:10:32,000 Speaker 4: less than three weeks old, and as even conservative commentators 194 00:10:32,040 --> 00:10:34,160 Speaker 4: have chanced to weigh in, I think there's been a 195 00:10:34,280 --> 00:10:38,400 Speaker 4: developing consensus that there are serious problems with the plaintiffs 196 00:10:38,559 --> 00:10:41,839 Speaker 4: in this case is standing. So that whatever folks think 197 00:10:41,880 --> 00:10:46,000 Speaker 4: of mifipristone or the FDA or any of the administrative 198 00:10:46,040 --> 00:10:49,400 Speaker 4: law arguments that Judge Chasmeric relied upon in his order. 199 00:10:49,840 --> 00:10:52,400 Speaker 4: You know, this case has an enormous obstacle in the 200 00:10:52,440 --> 00:10:55,120 Speaker 4: form of the planet's lack of stand in. So I 201 00:10:55,120 --> 00:10:57,720 Speaker 4: don't think it is by any means a foregone conclusion 202 00:10:58,120 --> 00:11:01,439 Speaker 4: that the Fifth Circuit is going to ultimate affirmed Judge Kasmeric. 203 00:11:01,800 --> 00:11:03,400 Speaker 4: And if it does, I think all that will do 204 00:11:03,520 --> 00:11:05,360 Speaker 4: is kee this up to go back to the Supreme Court. 205 00:11:05,559 --> 00:11:07,439 Speaker 4: But if it doesn't, if you get a panel on 206 00:11:07,480 --> 00:11:09,839 Speaker 4: the Fifth Circus that said, actually, we don't think these 207 00:11:09,920 --> 00:11:13,280 Speaker 4: planets have stand in and so we reverse du Kasmeric 208 00:11:13,320 --> 00:11:16,200 Speaker 4: and we dismissed this case. I'm sure the planeffs will 209 00:11:16,240 --> 00:11:18,160 Speaker 4: go to the Supreme Court and ask the Supreme Court 210 00:11:18,240 --> 00:11:20,800 Speaker 4: to review that decision. I'm not sure the Supreme Court 211 00:11:20,800 --> 00:11:23,400 Speaker 4: will agree, and that I think Stuon is where we 212 00:11:23,480 --> 00:11:25,920 Speaker 4: might see, you know, more of the point you made 213 00:11:25,960 --> 00:11:28,560 Speaker 4: at the top, more of the Court recommitted to the 214 00:11:28,640 --> 00:11:31,160 Speaker 4: idea that it really wants to leave the question of 215 00:11:31,200 --> 00:11:33,360 Speaker 4: abortion access to the democratic process. 216 00:11:33,960 --> 00:11:36,679 Speaker 2: Steve, I want to turn now to another topic. Senator 217 00:11:36,679 --> 00:11:39,960 Speaker 2: Dick Durbin, the chair of the Senate Judiciary Committee, had 218 00:11:40,000 --> 00:11:43,960 Speaker 2: invited Chief Justice John Roberts to testify before the committee 219 00:11:43,960 --> 00:11:48,679 Speaker 2: regarding Supreme Court ethics. That's in light of recent revelations 220 00:11:48,720 --> 00:11:53,200 Speaker 2: that Justice Clarence Thomas had gone on luxury vacations paid 221 00:11:53,280 --> 00:11:57,319 Speaker 2: for by a billionaire Republican donor for decades, and also 222 00:11:57,440 --> 00:12:00,320 Speaker 2: that money changed hands between the two in this sale 223 00:12:00,320 --> 00:12:04,440 Speaker 2: of property. The Chief Justice declined the invitation. It was 224 00:12:04,440 --> 00:12:08,679 Speaker 2: no surprise that Roberts refused to testify, and he cited 225 00:12:08,720 --> 00:12:14,040 Speaker 2: separation of powers concerns and the importance of preserving judicial independence. 226 00:12:14,640 --> 00:12:17,559 Speaker 2: Do you think that was the only move for him? 227 00:12:17,960 --> 00:12:21,480 Speaker 4: Yes, If I'm Chief Justice Roberts, I am not voluntarily 228 00:12:21,520 --> 00:12:24,800 Speaker 4: agreeing to set a precedent wherein the Chief Justice can 229 00:12:24,840 --> 00:12:28,880 Speaker 4: be called before Congress anytime you know enough members of 230 00:12:28,960 --> 00:12:32,120 Speaker 4: Congress think that a particular justice has acted inappropriately on 231 00:12:32,160 --> 00:12:34,880 Speaker 4: the foot side, Right, a sort of an invitation to 232 00:12:34,960 --> 00:12:38,760 Speaker 4: testify is about the most milk toast bin that Congress 233 00:12:38,760 --> 00:12:41,720 Speaker 4: could have done. Right, there are far more aggressive things 234 00:12:41,800 --> 00:12:44,960 Speaker 4: Congress could do going forward, where maybe the Chief Justice 235 00:12:44,960 --> 00:12:47,600 Speaker 4: couldn't just politely decline, And I think this is where 236 00:12:47,679 --> 00:12:50,240 Speaker 4: I think the story really goes next, which is, you know, 237 00:12:50,440 --> 00:12:54,480 Speaker 4: we're not all going to agree on which rules should 238 00:12:54,480 --> 00:12:57,680 Speaker 4: bind the Supreme Court's justices. We're not even all going 239 00:12:57,720 --> 00:13:01,880 Speaker 4: to agree on whether particular behavior by particular justices violates 240 00:13:01,920 --> 00:13:04,360 Speaker 4: those rules. But we all ought to at least have 241 00:13:04,480 --> 00:13:07,439 Speaker 4: common cause on the point that there should be some 242 00:13:07,600 --> 00:13:11,000 Speaker 4: rules that bind the Supreme Court and that bind the justices, 243 00:13:11,440 --> 00:13:14,559 Speaker 4: and that those rules ought to have some meaningful peace 244 00:13:14,720 --> 00:13:16,640 Speaker 4: behind them. And this is where I think, you know, 245 00:13:16,720 --> 00:13:19,040 Speaker 4: the conversation ought to go next, which is, how do 246 00:13:19,120 --> 00:13:25,000 Speaker 4: we create a mechanism where the justices are impelled through 247 00:13:25,160 --> 00:13:29,400 Speaker 4: political pressure, through public pressure, through other mechanisms to comply 248 00:13:29,559 --> 00:13:31,320 Speaker 4: with the rules as they exist, and not just to 249 00:13:31,360 --> 00:13:33,560 Speaker 4: take such applause they approach And to me, I mean, 250 00:13:33,559 --> 00:13:36,160 Speaker 4: there's a bill that was introduced this week by Maine 251 00:13:36,280 --> 00:13:39,160 Speaker 4: Senator and Gus Kingdon by Alaska Center, at least in Murkowski, 252 00:13:39,520 --> 00:13:41,520 Speaker 4: I think this is a pretty good job of actually 253 00:13:41,520 --> 00:13:44,320 Speaker 4: splitting the difference. It doesn't dictate a code of conduct. 254 00:13:44,320 --> 00:13:47,440 Speaker 4: It says, hey, Supreme Court, you must adopt a formal 255 00:13:47,480 --> 00:13:51,840 Speaker 4: code of conduct, and you must create some mechanism for 256 00:13:52,240 --> 00:13:56,319 Speaker 4: overseeing compliance with that code of conduct, and whenever there 257 00:13:56,400 --> 00:14:00,200 Speaker 4: is a dispute over compliance, you must report back to 258 00:14:00,320 --> 00:14:02,839 Speaker 4: us on what the dispute was. That seems to me 259 00:14:03,040 --> 00:14:06,040 Speaker 4: not remotely inconsistent with the separation of powers. You know, 260 00:14:06,120 --> 00:14:07,959 Speaker 4: Congress can say, hey, we're going to give you ten 261 00:14:08,000 --> 00:14:10,080 Speaker 4: million dollars, but we're going to tell you what's spend 262 00:14:10,080 --> 00:14:11,520 Speaker 4: it on, and you've got to report back to us 263 00:14:11,520 --> 00:14:14,280 Speaker 4: on how you spent it. That's how the budget works. 264 00:14:14,320 --> 00:14:16,800 Speaker 4: And then jun then we have the real conversation, which 265 00:14:16,800 --> 00:14:18,960 Speaker 4: is whether any of these cases rise to the level 266 00:14:19,640 --> 00:14:23,680 Speaker 4: of allowing Congress to exercise the clear constitutional authority it 267 00:14:23,760 --> 00:14:26,680 Speaker 4: has to act against justices who misbehave, which is the 268 00:14:26,680 --> 00:14:29,520 Speaker 4: impeachment powers. I don't think we're there, but I think 269 00:14:29,560 --> 00:14:32,120 Speaker 4: we also ought to be willing to accept that for 270 00:14:32,240 --> 00:14:34,920 Speaker 4: the impeachment power to be meaningful, for Congress to have 271 00:14:34,960 --> 00:14:38,280 Speaker 4: any real opportunity to wield it as a check on 272 00:14:38,320 --> 00:14:41,920 Speaker 4: the justices, there has to be some mechanism by which 273 00:14:42,400 --> 00:14:45,600 Speaker 4: Congress can be made aware of violations of whatever the 274 00:14:45,640 --> 00:14:46,080 Speaker 4: rules are. 275 00:14:46,480 --> 00:14:50,920 Speaker 2: I didn't find Robert's refusal so surprising. What I did 276 00:14:50,960 --> 00:14:54,880 Speaker 2: find a little surprising was this statement signed by all 277 00:14:55,000 --> 00:14:59,960 Speaker 2: nine Justices vowing to follow foundational ethics, principles and practice, 278 00:15:00,160 --> 00:15:04,360 Speaker 2: is because it suggests that everything's fine. They don't have 279 00:15:04,520 --> 00:15:07,680 Speaker 2: any need for a formal code of conduct, despite what 280 00:15:07,720 --> 00:15:09,560 Speaker 2: we've been hearing about for weeks. 281 00:15:09,920 --> 00:15:11,760 Speaker 4: And I think what this goes back to is, I 282 00:15:11,760 --> 00:15:13,600 Speaker 4: mean something we talk about a lot in law schools, 283 00:15:13,600 --> 00:15:17,280 Speaker 4: the difference between having rules and having an effective means 284 00:15:17,280 --> 00:15:20,440 Speaker 4: of enforcing them. Right, you can have the finest rules 285 00:15:20,440 --> 00:15:23,560 Speaker 4: that any two humans could devise, and they would be 286 00:15:23,560 --> 00:15:26,480 Speaker 4: pretty pointless if nothing happened when they were violated. And 287 00:15:26,520 --> 00:15:28,960 Speaker 4: so I think the question is not whether the Supreme 288 00:15:28,960 --> 00:15:31,120 Speaker 4: Court should have a code of conduct. Clearly the answer 289 00:15:31,160 --> 00:15:33,640 Speaker 4: is yes. The Justices themselves even seem willing to bind 290 00:15:33,640 --> 00:15:37,000 Speaker 4: themselves to at least these loose principles that achieve justice, 291 00:15:37,040 --> 00:15:39,680 Speaker 4: Roberts attached to his letter. The question is what's going 292 00:15:39,760 --> 00:15:42,560 Speaker 4: to happen if and when those principles are violated? And 293 00:15:42,720 --> 00:15:44,600 Speaker 4: you know, I think the answer has to be for 294 00:15:44,680 --> 00:15:47,760 Speaker 4: the sake of the separation of powers more than nothing. 295 00:15:48,720 --> 00:15:51,960 Speaker 4: And I'm on the side that thinks that there would 296 00:15:52,000 --> 00:15:55,760 Speaker 4: be separation of powers problems if Congress claims for itself 297 00:15:56,280 --> 00:15:59,800 Speaker 4: the power to discipline justices who violate the rules, or 298 00:16:00,120 --> 00:16:03,720 Speaker 4: Congress gave someone other than the Supreme Court the power 299 00:16:03,720 --> 00:16:07,280 Speaker 4: to oversee compliance with these rules. At the same time, 300 00:16:07,920 --> 00:16:11,160 Speaker 4: the Constitution gives Congress the power to impeach judges and 301 00:16:11,320 --> 00:16:14,720 Speaker 4: justices entirely for those cases in which those judges and 302 00:16:14,840 --> 00:16:18,160 Speaker 4: justices are not engaging in what Article three calls quote 303 00:16:18,160 --> 00:16:22,120 Speaker 4: good behavior unquotes, and so it seems like it vindicates 304 00:16:22,160 --> 00:16:25,840 Speaker 4: the separation of powers rather than interfering with them, for 305 00:16:25,960 --> 00:16:29,920 Speaker 4: Congress to create a mechanism whereby the Court will police itself, 306 00:16:30,240 --> 00:16:33,000 Speaker 4: but it will also report to Congress on its efforts. 307 00:16:33,440 --> 00:16:39,680 Speaker 2: The Chief Justice also declined to investigate Clarence Thomas's ethical challenges, 308 00:16:39,720 --> 00:16:43,160 Speaker 2: shall we say, but he referred to Congress's request for 309 00:16:43,200 --> 00:16:47,360 Speaker 2: the investigation to the Judicial Conference of the United States. 310 00:16:48,160 --> 00:16:50,960 Speaker 2: Do they do investigations or do they make policy? 311 00:16:51,960 --> 00:16:53,360 Speaker 4: I mean a little bit of both. So the Judicial 312 00:16:53,360 --> 00:16:57,440 Speaker 4: Conference has at least some authority under a sort of 313 00:16:57,440 --> 00:17:00,680 Speaker 4: a nineteen sixties era federal statute, to engage in some 314 00:17:00,800 --> 00:17:04,840 Speaker 4: investigative functions, but that's almost always been understood to be 315 00:17:04,920 --> 00:17:07,560 Speaker 4: focused at the lower courts that you know, the Judicial 316 00:17:07,600 --> 00:17:10,600 Speaker 4: Conference comes in when there's some investigation needed of a 317 00:17:10,680 --> 00:17:13,680 Speaker 4: legend misconduct by lower court judges. We're about to see 318 00:17:13,680 --> 00:17:15,640 Speaker 4: this in the context of the effort by the Chief 319 00:17:15,720 --> 00:17:19,200 Speaker 4: Judge of the Federal Circuit to remove one of her colleagues. 320 00:17:19,520 --> 00:17:21,919 Speaker 4: The Judicial Conference is not set up at all to 321 00:17:22,000 --> 00:17:25,119 Speaker 4: handle investigations of the court, and that I think is 322 00:17:25,160 --> 00:17:29,040 Speaker 4: why the King Murkowski Bill is probably a much better 323 00:17:29,040 --> 00:17:32,399 Speaker 4: alternative to what Chief Judge Roberts is proposing, Because the 324 00:17:32,480 --> 00:17:35,440 Speaker 4: King Murkowski Bill says, hey, Supreme Court, you know you 325 00:17:36,800 --> 00:17:39,760 Speaker 4: you tell us what your rules are, and you create 326 00:17:39,760 --> 00:17:44,240 Speaker 4: a mechanism for supervising internally whether your rules are being followed, 327 00:17:44,720 --> 00:17:48,159 Speaker 4: and you report to us when they're not right. That, 328 00:17:48,320 --> 00:17:50,280 Speaker 4: to me is exactly how you split the difference. So 329 00:17:50,359 --> 00:17:53,280 Speaker 4: that in those cases where the rules are not being followed, 330 00:17:53,760 --> 00:17:56,240 Speaker 4: we don't expect the courts that discipline itself, but we 331 00:17:56,320 --> 00:17:59,200 Speaker 4: do expect the courts to at least identify the problems 332 00:17:59,400 --> 00:18:02,359 Speaker 4: so that if Congress, the body that has the conscertorsmal 333 00:18:02,400 --> 00:18:06,240 Speaker 4: authority to remove justices who fail to engage in good behavior, 334 00:18:06,760 --> 00:18:08,840 Speaker 4: wants to emphacize that power, it has been means to 335 00:18:08,880 --> 00:18:09,200 Speaker 4: do so. 336 00:18:09,520 --> 00:18:11,520 Speaker 2: It's always so great to have you on the show, Steve, 337 00:18:11,600 --> 00:18:14,879 Speaker 2: thanks so much. That's Professor Steven Vladika the University of 338 00:18:14,920 --> 00:18:19,960 Speaker 2: Texas School of Law. The Supreme Court justices seemed torn 339 00:18:20,000 --> 00:18:23,920 Speaker 2: about whether Congress intended to allow individuals to sue American 340 00:18:23,960 --> 00:18:27,960 Speaker 2: Indian tribes in bankruptcy disputes. The Court has long applied 341 00:18:28,000 --> 00:18:31,720 Speaker 2: a clear statement rule when Congress means to waive tribal 342 00:18:31,800 --> 00:18:35,800 Speaker 2: sovereign immunity. Chief Justice John Roberts noted that Congress has 343 00:18:35,880 --> 00:18:40,360 Speaker 2: never waived sovereign immunity without expressly using the term tribe. 344 00:18:41,280 --> 00:18:43,679 Speaker 3: Well, but I mean, the biggest hurdle I think you 345 00:18:43,720 --> 00:18:46,000 Speaker 3: have to get over is that they everywhere else they 346 00:18:46,080 --> 00:18:49,040 Speaker 3: use the word tribe and they didn't hear and they've 347 00:18:49,080 --> 00:18:53,600 Speaker 3: got a long list of other type of governmental agencies. 348 00:18:54,080 --> 00:18:56,080 Speaker 3: I mean, you don't have to be in the Big 349 00:18:56,119 --> 00:18:59,000 Speaker 3: four or Big five because they're I don't know. You 350 00:18:59,040 --> 00:19:01,960 Speaker 3: must accounted them like at least a dozen and surely 351 00:19:02,000 --> 00:19:05,120 Speaker 3: they're in the top dozen. So this is the only 352 00:19:05,240 --> 00:19:08,720 Speaker 3: instance where they haven't used the word tribe or Indian 353 00:19:08,720 --> 00:19:09,840 Speaker 3: when they meant to include them. 354 00:19:09,880 --> 00:19:13,840 Speaker 2: Right, But the Court has also emphasized that lawmakers don't 355 00:19:13,880 --> 00:19:17,440 Speaker 2: have to use specific or magic words to waive tribal 356 00:19:17,520 --> 00:19:22,000 Speaker 2: sovereign immunity. Here are Justices Elena Kagan and Amy Cony Barrett, 357 00:19:22,680 --> 00:19:26,639 Speaker 2: and I think that the difficulty for you is, aren't 358 00:19:26,640 --> 00:19:29,280 Speaker 2: you really making it into a magic or its requirement. 359 00:19:30,760 --> 00:19:32,159 Speaker 4: It's hard for me to say how that would be 360 00:19:32,240 --> 00:19:34,520 Speaker 4: a hard question for the United States or for a state. 361 00:19:34,600 --> 00:19:36,560 Speaker 2: So it sounds to me like you're carving out an 362 00:19:36,600 --> 00:19:40,960 Speaker 2: extra special, super super clear weg My guest is Ezra Rasser, 363 00:19:41,200 --> 00:19:44,800 Speaker 2: a professor at the American University Washington College of Law. 364 00:19:45,119 --> 00:19:47,840 Speaker 2: Ezra tell us about the facts in this case, why 365 00:19:47,920 --> 00:19:49,600 Speaker 2: it came to the Supreme Court. 366 00:19:50,040 --> 00:19:54,159 Speaker 1: I mean, there's been a series of cases where people 367 00:19:54,280 --> 00:20:00,440 Speaker 1: challenging the power of tribes want to undercut tribal sovereign unity. 368 00:20:00,640 --> 00:20:05,080 Speaker 1: So this is just another in the theories. I think 369 00:20:05,160 --> 00:20:08,399 Speaker 1: the thing that's unique, of course, on this one is 370 00:20:08,440 --> 00:20:12,320 Speaker 1: that it got taken preserved, and it got taken so 371 00:20:12,640 --> 00:20:16,560 Speaker 1: quickly after the Court had reaffirmed in Bay Mills that 372 00:20:17,000 --> 00:20:21,720 Speaker 1: sovereign immunity still exists. And so I think it's less 373 00:20:21,840 --> 00:20:24,679 Speaker 1: about the particulars of this case and more about the 374 00:20:24,680 --> 00:20:27,920 Speaker 1: fact that the Court continues to take these cases and 375 00:20:28,000 --> 00:20:29,800 Speaker 1: threaten to get rid of sovereign immunity. 376 00:20:30,119 --> 00:20:32,400 Speaker 2: Do the facts here make the Indian tribe look bad 377 00:20:32,440 --> 00:20:35,800 Speaker 2: because it involves payday loans and a man who tried 378 00:20:35,840 --> 00:20:38,520 Speaker 2: to commit suicide because he was being pressured. 379 00:20:38,840 --> 00:20:41,520 Speaker 1: Yeah, I mean the facts are terrible for sure, and 380 00:20:41,760 --> 00:20:44,439 Speaker 1: the way in which tribes have jumped into some of 381 00:20:44,480 --> 00:20:47,760 Speaker 1: these what can only be thought of as bad businesses 382 00:20:48,240 --> 00:20:52,359 Speaker 1: do look terrible. But as the oral argument made clear, 383 00:20:52,520 --> 00:20:55,800 Speaker 1: that isn't the real issue in the case. So, yes, 384 00:20:55,880 --> 00:20:59,000 Speaker 1: they're bad facts, but the question is whether there's been 385 00:20:59,080 --> 00:21:01,160 Speaker 1: abrogation of tribal sovereign immunity. 386 00:21:01,760 --> 00:21:05,800 Speaker 2: Explain what exactly is tribal sovereign immunity. 387 00:21:06,320 --> 00:21:08,800 Speaker 1: So the basic idea here is that they're a sovereign 388 00:21:09,040 --> 00:21:12,200 Speaker 1: and you can't just sue the sovereign, meaning the government, 389 00:21:12,320 --> 00:21:14,879 Speaker 1: unless the government gives you permission to it, and this 390 00:21:15,000 --> 00:21:17,200 Speaker 1: is true for all types of government. For a very 391 00:21:17,200 --> 00:21:19,399 Speaker 1: long time, the United States government made it hard for 392 00:21:19,480 --> 00:21:22,520 Speaker 1: people that were harmed by the United States that sue them, 393 00:21:22,560 --> 00:21:25,080 Speaker 1: and so people would do petitions to Congress to get 394 00:21:25,160 --> 00:21:28,400 Speaker 1: recourse if the government had harmed them or they'd suffered 395 00:21:28,440 --> 00:21:32,320 Speaker 1: some loss, and so tribes have that sovereign immunity as well. 396 00:21:32,359 --> 00:21:35,879 Speaker 1: And the question is if Congress, you know, in passing 397 00:21:35,960 --> 00:21:40,520 Speaker 1: the Bankruptcy Act, did they abrogate sovereign immunity with regard 398 00:21:40,560 --> 00:21:43,520 Speaker 1: to that area of law practice, right, But it is 399 00:21:43,600 --> 00:21:46,000 Speaker 1: a standard part of what being a government means is 400 00:21:46,040 --> 00:21:47,080 Speaker 1: you have this immunity. 401 00:21:47,600 --> 00:21:50,280 Speaker 2: I read that this case is one of the simplest 402 00:21:50,520 --> 00:21:54,399 Speaker 2: the justices here this year because it involves no constitutional 403 00:21:54,480 --> 00:21:58,320 Speaker 2: questions and the interpretation of a single phrase of a 404 00:21:58,320 --> 00:22:01,840 Speaker 2: single statutory provision. It didn't sound that simple. 405 00:22:02,359 --> 00:22:04,920 Speaker 1: Yeah, I think the challenge I would actually agree that 406 00:22:04,960 --> 00:22:07,959 Speaker 1: it's simple, but for a different reason. So the simple 407 00:22:08,040 --> 00:22:10,959 Speaker 1: part about it is that many times the Court has 408 00:22:11,000 --> 00:22:14,399 Speaker 1: been asked what counts as waiver of sovereign immunity, and 409 00:22:14,440 --> 00:22:19,200 Speaker 1: the answer has always consistently been when Congress is clear, 410 00:22:19,480 --> 00:22:24,000 Speaker 1: if there's an express abrogation, then yes, the rights are lost. 411 00:22:24,040 --> 00:22:28,160 Speaker 1: But if there's not express abrogation of a tribal sovereign right, 412 00:22:28,359 --> 00:22:33,200 Speaker 1: then it continues. And so here there's been no express abrogation, 413 00:22:33,560 --> 00:22:37,840 Speaker 1: meaning Congress has not said we are taking away tribes' rights. 414 00:22:38,080 --> 00:22:40,800 Speaker 1: Therefore the rights should still exist. So as far as 415 00:22:40,840 --> 00:22:43,199 Speaker 1: what the Court has done in the past. It is 416 00:22:43,240 --> 00:22:46,600 Speaker 1: a very simple case that should come out very easily 417 00:22:46,640 --> 00:22:49,080 Speaker 1: on the pro tribal side, but the fact that they 418 00:22:49,080 --> 00:22:51,720 Speaker 1: took certain suggests that it's not going to be that clean. 419 00:22:52,200 --> 00:22:55,760 Speaker 2: Also, I mean, some of the justices Amy Cony Barrett 420 00:22:55,800 --> 00:22:59,439 Speaker 2: said it seemed that Congress intended to cast a wide 421 00:22:59,480 --> 00:23:04,040 Speaker 2: net when described being government and dey susceptible to suits. 422 00:23:04,440 --> 00:23:06,720 Speaker 1: Yeah, well, definitely, that's what she said in the oral argument, 423 00:23:06,760 --> 00:23:10,760 Speaker 1: and I think for sure that's the argument against the 424 00:23:10,840 --> 00:23:13,760 Speaker 1: tribes on this The problem with that argument is that 425 00:23:13,760 --> 00:23:16,399 Speaker 1: that argument has been made in many cases in the past, 426 00:23:16,600 --> 00:23:19,680 Speaker 1: and consistently the Court has said, no, we mean it 427 00:23:19,720 --> 00:23:22,480 Speaker 1: that tribes are sovereign. And I think one of the 428 00:23:22,480 --> 00:23:25,600 Speaker 1: things that should be understood by everyone, at least under 429 00:23:26,280 --> 00:23:29,960 Speaker 1: federal Indian law that if Congress wants to get rid 430 00:23:29,960 --> 00:23:32,080 Speaker 1: of this power of tribes, all they have to do 431 00:23:32,160 --> 00:23:34,399 Speaker 1: is pass an act that says tribes don't have it. 432 00:23:35,000 --> 00:23:37,280 Speaker 1: But you can't do it by implication. You can't just 433 00:23:37,320 --> 00:23:40,199 Speaker 1: sort of infer that they meant to include tribes. And 434 00:23:40,280 --> 00:23:44,359 Speaker 1: this case really is about, well, if they use some 435 00:23:44,560 --> 00:23:47,439 Speaker 1: words that were not tribes, do those words count? And 436 00:23:47,520 --> 00:23:51,040 Speaker 1: traditionally the answer has been easy. No, the fact that 437 00:23:51,080 --> 00:23:53,120 Speaker 1: they took certain means that maybe we're going to open 438 00:23:53,119 --> 00:23:56,200 Speaker 1: it up to more light abrogation of tribal sovereignty. 439 00:23:56,800 --> 00:24:01,240 Speaker 2: Well, just as Elena Kagan said to the tribes attorney, 440 00:24:01,320 --> 00:24:03,960 Speaker 2: I think the difficulty for you is, aren't you really 441 00:24:04,000 --> 00:24:07,440 Speaker 2: making it into a magic words requirement? And that sort 442 00:24:07,480 --> 00:24:10,119 Speaker 2: of went along with what Barrett said. She said it 443 00:24:10,160 --> 00:24:13,360 Speaker 2: seemed like the tribe was asking for an extra special, 444 00:24:13,640 --> 00:24:16,240 Speaker 2: super super clear rule for Indian tribes. 445 00:24:16,680 --> 00:24:18,880 Speaker 1: Yeah, And I had two thoughts when I heard that part, 446 00:24:18,960 --> 00:24:22,159 Speaker 1: which one is I don't see what would be wrong 447 00:24:22,280 --> 00:24:28,120 Speaker 1: with requiring Congress to actually explicitly be clear that they 448 00:24:28,240 --> 00:24:31,119 Speaker 1: want to get rid of this area of sovereignty for tribes. So, 449 00:24:31,920 --> 00:24:37,000 Speaker 1: tribes are sovereign entities whose sovereignty pre existed the United States, 450 00:24:37,040 --> 00:24:40,719 Speaker 1: and we, meaning the federal government and the United States, 451 00:24:40,760 --> 00:24:43,800 Speaker 1: asserts a superior sovereignty over them. We say that we 452 00:24:43,840 --> 00:24:46,399 Speaker 1: have plenary power, we can do what we want. But 453 00:24:46,680 --> 00:24:48,719 Speaker 1: if we're going to say that we have such power, 454 00:24:48,760 --> 00:24:51,239 Speaker 1: we should at least be clear when we exercise it. 455 00:24:51,280 --> 00:24:54,320 Speaker 1: And so in that oral argument, I almost wanted them 456 00:24:54,320 --> 00:24:58,040 Speaker 1: to agree that yes, that's the point is that if 457 00:24:58,080 --> 00:25:00,720 Speaker 1: you're going to take away something, take it away and 458 00:25:00,760 --> 00:25:03,600 Speaker 1: be clear you're taking it away. Don't make a general 459 00:25:03,640 --> 00:25:06,359 Speaker 1: thing and then later ask the courts to make it larger. 460 00:25:07,200 --> 00:25:09,840 Speaker 2: I mean, did you see a split among the justices, 461 00:25:10,119 --> 00:25:12,880 Speaker 2: Which did you think were on which side? 462 00:25:13,040 --> 00:25:13,240 Speaker 1: Yeah? 463 00:25:13,280 --> 00:25:13,520 Speaker 4: I mean. 464 00:25:13,760 --> 00:25:16,119 Speaker 1: So the problem is, and this goes back to the 465 00:25:16,160 --> 00:25:19,920 Speaker 1: bay Mills case that was the sort of prior case 466 00:25:20,040 --> 00:25:23,679 Speaker 1: on the same topic, is that we might have thought 467 00:25:23,960 --> 00:25:27,679 Speaker 1: earlier that this case hadn't been dealt with through Bay Mills, 468 00:25:27,760 --> 00:25:30,600 Speaker 1: which was decided in twenty fourteen. And in bay Mills, 469 00:25:30,640 --> 00:25:33,959 Speaker 1: the court had a similar opportunity to get rid of 470 00:25:34,200 --> 00:25:38,920 Speaker 1: sovereign immunity or really weaken it. And despite guesswork that 471 00:25:38,960 --> 00:25:41,159 Speaker 1: they would do that, they actually came out on the 472 00:25:41,160 --> 00:25:43,280 Speaker 1: tribal side. And so I think this is a very 473 00:25:43,320 --> 00:25:47,680 Speaker 1: hard one to predict, because on the one hand, all 474 00:25:47,800 --> 00:25:53,520 Speaker 1: the presidents says federal Indian law requires express abrogation, the 475 00:25:53,560 --> 00:25:57,360 Speaker 1: tribe should win. On the other hand, you do have parties, 476 00:25:57,359 --> 00:25:58,920 Speaker 1: and we saw this at the very beginning of the 477 00:25:59,040 --> 00:26:03,320 Speaker 1: oral argument. You have justices who are concerned about Indians 478 00:26:03,400 --> 00:26:07,520 Speaker 1: acting in the larger economic space of the country and 479 00:26:07,640 --> 00:26:10,240 Speaker 1: are very nervous about sovereign immunity. Now they were in 480 00:26:10,280 --> 00:26:13,080 Speaker 1: the descent in prior cases, but the fact that they 481 00:26:13,119 --> 00:26:15,680 Speaker 1: keep taking cert suggests some of them think that eventually 482 00:26:15,720 --> 00:26:16,840 Speaker 1: they'll win justice. 483 00:26:16,880 --> 00:26:22,320 Speaker 2: Neil Gorsuch is often sympathetic to the Indians' rights in 484 00:26:22,359 --> 00:26:23,080 Speaker 2: these cases. 485 00:26:23,119 --> 00:26:27,080 Speaker 1: Where was he, I don't know, and I think we 486 00:26:27,119 --> 00:26:30,600 Speaker 1: have very clear the only one that I was like, 487 00:26:30,720 --> 00:26:33,159 Speaker 1: oh my gosh, this is clear where there's two. So 488 00:26:33,240 --> 00:26:37,280 Speaker 1: the really clear ones were Thomas I thought at the beginning, 489 00:26:37,320 --> 00:26:41,280 Speaker 1: and even the attorney for the tribes that we do 490 00:26:41,400 --> 00:26:44,400 Speaker 1: understand that some of the justices are not in agreement 491 00:26:44,440 --> 00:26:47,080 Speaker 1: with this right now the acknowledgement of that, and then 492 00:26:47,320 --> 00:26:50,720 Speaker 1: Amy Kobi Berrett, I think also was pretty clear that 493 00:26:50,800 --> 00:26:53,879 Speaker 1: she saw this, you know, big language used in the 494 00:26:54,119 --> 00:26:57,960 Speaker 1: Bankruptcy Act would incorporate all governments on that part. Though 495 00:26:58,359 --> 00:27:01,120 Speaker 1: there too, I thought this is weird because not only 496 00:27:01,160 --> 00:27:04,960 Speaker 1: have we had precedent on sovereign immunity Kiowa and Bay Mills, 497 00:27:05,119 --> 00:27:10,560 Speaker 1: we also have precedents saying tribes are not states, nor 498 00:27:10,600 --> 00:27:13,360 Speaker 1: are they foreign governments. And since that's what's listed in 499 00:27:13,400 --> 00:27:16,760 Speaker 1: the Bankruptcy Act, there seems to be pretty clear. This 500 00:27:16,880 --> 00:27:21,440 Speaker 1: was the first of the Cherokee cases. Pretty clear statements 501 00:27:21,480 --> 00:27:24,200 Speaker 1: from the Court when it first considered what Indians were. 502 00:27:24,520 --> 00:27:26,639 Speaker 1: They were very clear they are not foreign nations and 503 00:27:26,640 --> 00:27:28,800 Speaker 1: they are not states, which would seem to be what 504 00:27:28,880 --> 00:27:31,280 Speaker 1: the categories discussed in the statue were. 505 00:27:31,720 --> 00:27:34,199 Speaker 2: Tell us about the split in the circuit courts on 506 00:27:34,240 --> 00:27:35,040 Speaker 2: this issue. 507 00:27:35,640 --> 00:27:38,080 Speaker 1: So to me, that makes sent So one of the 508 00:27:38,119 --> 00:27:40,720 Speaker 1: things is that I think that the precedent on this 509 00:27:40,880 --> 00:27:47,159 Speaker 1: case is pretty easy. But the ask from tribes to 510 00:27:47,359 --> 00:27:51,720 Speaker 1: not Indians who are not familiar with tribal sovereignty, that 511 00:27:51,880 --> 00:27:55,879 Speaker 1: are nervous about tribes acting in the larger economy is. 512 00:27:55,880 --> 00:27:56,400 Speaker 4: A big one. 513 00:27:56,640 --> 00:27:59,360 Speaker 1: And anytime that there's a big ask, and the big 514 00:27:59,400 --> 00:28:03,680 Speaker 1: ask here is recognize our sovereignty and when push comes 515 00:28:03,680 --> 00:28:06,719 Speaker 1: to sup we can rely on that to protect us 516 00:28:06,720 --> 00:28:10,080 Speaker 1: against suit. That's a hard ask to make. And so 517 00:28:10,760 --> 00:28:13,360 Speaker 1: the fact that courts are coming out different ways is 518 00:28:13,640 --> 00:28:15,760 Speaker 1: somewhat natural. It's not surprising. 519 00:28:16,240 --> 00:28:20,640 Speaker 2: So in this case, the first circuit ruled against the 520 00:28:20,640 --> 00:28:25,240 Speaker 2: Indian tribes. So isn't it normally that the Supreme Court 521 00:28:25,280 --> 00:28:29,040 Speaker 2: takes a case because they want to reverse the lower court. 522 00:28:30,200 --> 00:28:32,640 Speaker 1: I think this is one of those that it could 523 00:28:32,720 --> 00:28:34,040 Speaker 1: be that way. I just don't know it. This isn't 524 00:28:34,080 --> 00:28:36,280 Speaker 1: might be very nervous, and I don't know how to 525 00:28:36,280 --> 00:28:39,520 Speaker 1: predict it all. When bay Mills came up, that was 526 00:28:39,560 --> 00:28:41,440 Speaker 1: the case that I followed more. And when bay Mills 527 00:28:41,520 --> 00:28:44,720 Speaker 1: came up, I, like many of us, were very pessimistic 528 00:28:44,760 --> 00:28:46,240 Speaker 1: about what the court was going to do there, and 529 00:28:46,280 --> 00:28:49,000 Speaker 1: they didn't go that way. You know, they almost were 530 00:28:49,040 --> 00:28:52,680 Speaker 1: apologetic in saying, like, we're doing this because the president 531 00:28:52,760 --> 00:28:56,440 Speaker 1: is such that we have no choice. This one seems 532 00:28:56,640 --> 00:28:59,040 Speaker 1: so in line with that. And it's not been that 533 00:28:59,240 --> 00:29:03,320 Speaker 1: long since they so I don't understand why they would 534 00:29:03,360 --> 00:29:05,320 Speaker 1: feel the need except to get rid of it. But 535 00:29:06,080 --> 00:29:06,800 Speaker 1: I could be wrong. 536 00:29:07,000 --> 00:29:08,920 Speaker 2: You hope you're wrong, right, Yeah, I. 537 00:29:08,840 --> 00:29:11,920 Speaker 1: Hope I'm wrong. I mean, clearly, the challenge on this 538 00:29:12,080 --> 00:29:16,680 Speaker 1: is that there's got to be a solution to people 539 00:29:16,680 --> 00:29:19,760 Speaker 1: that are harmed by what a tribe's doing. But it 540 00:29:19,800 --> 00:29:22,200 Speaker 1: doesn't have to be done or it shouldn't be done 541 00:29:22,240 --> 00:29:25,080 Speaker 1: by the courts imposing it in the absence of a 542 00:29:25,120 --> 00:29:29,000 Speaker 1: clear statement by Congress, and in many ways, tribes themselves 543 00:29:29,040 --> 00:29:31,960 Speaker 1: are likely to come up with solutions that would be 544 00:29:32,000 --> 00:29:35,360 Speaker 1: all to respect their sovereignty and respect the need for recourse, 545 00:29:35,440 --> 00:29:38,640 Speaker 1: like by people harmed by tribal enterprises. So I think 546 00:29:38,680 --> 00:29:42,040 Speaker 1: the question is do we impose that downward on tribes 547 00:29:42,280 --> 00:29:43,560 Speaker 1: without a clear statement or not. 548 00:29:43,720 --> 00:29:46,560 Speaker 2: Thanks so much, Ezra. That's Professor Ezra Rosser of the 549 00:29:46,640 --> 00:29:50,760 Speaker 2: American University Washington College of Law. I'm June Grosso, and 550 00:29:50,800 --> 00:29:52,160 Speaker 2: you're listening to Bloomberg.