Speaker 1: This is Bloomberg Law with June Brusso from Bloomberg Radio.
Speaker 2: The legal fight over the abortion pill goes on. We
Speaker 2: believe that we were prevailing the courts. We believe that
Speaker 2: the law is on our side, and we're going to
Speaker 2: continue to fight for millions of women across the country.
Speaker 2: That's White House Press Secretary Kareem Jean Pierre.
Speaker 3: As.
Speaker 2: The controversial case over mifipristone returned to the Fifth Circuit
Speaker 2: Court of Appeals after the Supreme Court last Friday blocked
Speaker 2: to Texas judges restrictions from taking effect, keeping the drug
Speaker 2: fully available while the legal fight moves forward. My guest
Speaker 2: is constitutional law expert Stephen Vladik, a professor at the
Speaker 2: University of Texas School of Law. Does the Supreme Court's
Speaker 2: decision vindicate the Court's majority opinion in Dobbs, saying that
Speaker 2: questions about abortion would be left to the political process. Although,
Speaker 2: when we'll get to this in a moment, the justice
Speaker 2: who wrote that opinion, Samuel Alito, dissented here. Strangely enough, I.
Speaker 4: Don't really think that's a great framing. Is only because
Speaker 4: I think it reads a lot more into this unsigned,
Speaker 4: unexplained order than is reasonable under the circumstances. I think
Speaker 4: it'll be easier to say that if the Court ultimately
Speaker 4: ends up taking this case on the merits and ends
Speaker 4: up reversing Judge Kasmerican siding with the federal government. All
Speaker 4: that I m Friday's order really underscores is that there
Speaker 4: was a majority of justices who bought sort of the
Speaker 4: irreparable harm argument. Who bought that. You know, it really
Speaker 4: would cause chaos and disruption if Judge Chasmerics order were
Speaker 4: allowed to go into effect while the case works as
Speaker 4: way through the court. In that respect, student actually strikes
Speaker 4: me as something of an old school emergency intervention from
Speaker 4: the justices, where it really is sort of purely about
Speaker 4: the equities and not necessarily reflective of you on the merits.
Speaker 2: So let's talk about that dissent by Alito. In your newsletter,
Speaker 2: you discussed three claims Elito made in his descent. First,
Speaker 2: his bitter rant about the shadow docket, where he cachede
Speaker 2: on Justices Elena Kaig and Sonya Soto Mayor and Amy
Speaker 2: Cony Barrett.
Speaker 4: Justice Alito has been very sensitive to criticisms of the
Speaker 4: shadow docket. This is not the first time he gave
Speaker 4: a whole speech at Notre Dame Law School in September
Speaker 4: of twenty twenty one, right in the middle of the
Speaker 4: first big public backlash after the Court's ruling in the
Speaker 4: Texas six week abortion ban case. You know, I think
Speaker 4: he has this sense that those who criticize the Court's
Speaker 4: increased use of emergency orders of unsigned, unexplained rulings in
Speaker 4: recent years to change the status quo are really objected
Speaker 4: to intervention as such, as opposed to a more nuanced
Speaker 4: story about when the Court's intervening and why, and so
Speaker 4: from his perspective, you know, when justices who have been
Speaker 4: critical of prior intervention are nevertheless voting to intervene, as
Speaker 4: the majority did on Friday night, you know, to him,
Speaker 4: that's hypocrisy. I think that's ironic, and at least two respects. First,
Speaker 4: he uses that hypocrisy to justify hypocrisy of his own.
Speaker 4: I mean, he expressly says, you know, I didn't agree
Speaker 4: with them then, but if they're going to do it,
Speaker 4: then I'm going to do what they did. But the
Speaker 4: second is I think that just really really sort of
Speaker 4: marginalizes what the criticisms of the Shato docket have been,
Speaker 4: which is not that the court is ever intervening, right.
Speaker 4: I mean, any appellate court is going to have circumstances
Speaker 4: where it has to intervene early in the case to
Speaker 4: preserve the status quo pending appeal. That's not new, that's
Speaker 4: not exceptional. Rather, the criticisms, at least from people like me,
Speaker 4: have been that the way the Court has been using
Speaker 4: this power in the last five or six years has
Speaker 4: been in defiance of historical norms for when the court
Speaker 4: should intervene, have been in defiance of the procedural and
Speaker 4: jurisdictional rules governing when the court can should intervene, and
Speaker 4: worst of all, have been inconsistent in when the Court
Speaker 4: has intervened in ways that really don't map on to
Speaker 4: any coherent, neutral legal principle so much as it maps
Speaker 4: on to the partisan valance of the dispute. That's the criticism. Now,
Speaker 4: folks may not agree with that criticism.
Speaker 1: That's fine.
Speaker 4: But I think what's frustrating about Alito's dissent is that
Speaker 4: he's basically knocking down a straw man when he says,
Speaker 4: you know, you guys have been opposed to intervention, and
Speaker 4: yet you're doing it here like that's not what the
Speaker 4: conversation has been.
Speaker 2: He also says that the Biden administration has unclean hands,
Speaker 2: which is a legal term.
Speaker 4: Explain that sort of reinforcing I think the view of
Speaker 4: Friday's intervention that this was really about the equities. When
Speaker 4: a court is asked to intervene at an early stage
Speaker 4: to either grant a stay or list to stay, what
Speaker 4: is really supposed to do is balance the equities, which is,
Speaker 4: you know, who would be harmed more by the two
Speaker 4: competing rules we could hand down and by the two
Speaker 4: competing sort of universes we could create while this case
Speaker 4: makes its way through the courts, and as an exercise
Speaker 4: of equitable power, it is by the idea that like
Speaker 4: parties that are acting badly should not be entitled to release.
Speaker 4: So one of his arguments for why the FDA should
Speaker 4: not have been entitled to his day is because he
Speaker 4: believes he maintains that the irreparable harm that the government
Speaker 4: said was going to result from allowing Chasmerics ruling to
Speaker 4: go into effects was at least to some degree created
Speaker 4: by the government through its litigation behavior. In the other
Speaker 4: myth Ofpristone case, the one that's pending in the Eastern
Speaker 4: District of Washington and Spokane. And you know what's remarkable
Speaker 4: about that claim, June is, First, I think there are
Speaker 4: any number of ways in which Judge Chasmerics ruling would
Speaker 4: have creative chaos all on his own, And he doesn't
Speaker 4: dispute that. He just suggests that the government's argument was
Speaker 4: about chaos as between the conflict between Chasmartics ruling and
Speaker 4: the Spokane ruling. But second, the things he accuses the
Speaker 4: government of doing are factually incorrect. He says the government
Speaker 4: did not appeal the Spokane ruling. Well, that time hasn't
Speaker 4: run yet. The government still has lots of time to appeal,
Speaker 4: and I suspective will. He said the government opposed intervention
Speaker 4: by seven read states in that case, implying that like
Speaker 4: the government tries to prevent them from appealing that decision.
Speaker 4: He doesn't tell the reader that actually the intervention request
Speaker 4: had nothing to do with an appeal and actually came
Speaker 4: even before the injunction was issued in that case. So
Speaker 4: it's a remarkable series of claims, Dune, because it's not
Speaker 4: just that they are in some respects hypocritical and inconsistent
Speaker 4: with his own prior behavior, but he is based in
Speaker 4: his arguments on students that are just not true, and
Speaker 4: indeed on points that have plenty of receipts that can
Speaker 4: be deployed to push back against them.
Speaker 2: So what hit me the most when I read this,
Speaker 2: What I found astonishing is this sentence. The government has
Speaker 2: not dispelled legitimate doubts that it would even obey an
Speaker 2: unfavorable order in these cases, much less that it would
Speaker 2: choose to take enforcement actions to which it has strong objection.
Speaker 2: I don't know where he got that idea that the
Speaker 2: Biden administration was not going to obey a court order.
Speaker 4: Well, I mean, I fear that he got that from
Speaker 4: right wing media. But let's back up the second right.
Speaker 4: I mean, so the unclean hands argument is why he
Speaker 4: said the FBA was not enteled to emergency release. But
Speaker 4: there was another party in this case, Danko Laboratories, one
Speaker 4: of the two US sponsors or distributors of mister Pristone.
Speaker 4: And Danko said, you know, hey, we're not the government.
Speaker 4: We're just a company with the bottom line, and if
Speaker 4: you allow Chasmeric's rule and to go into effect, our
Speaker 4: bottom line is going to take a huge hit. And
Speaker 4: Alito just sort of waves his hands and says, well,
Speaker 4: you know, the Biden administration is not going to prosecute
Speaker 4: you for basically for violating Judge Chasmeric's order. And you know, dude, first,
Speaker 4: that's a remarkable position to take in the abstract that
Speaker 4: you know, a company is not harmed because it might
Speaker 4: not be prosecuted for breaking the law. Like, hey, company,
Speaker 4: break the law, You'll be fine. Even if Danko were
Speaker 4: inclined to take such a cavalier approach to the rule
Speaker 4: of law. Danko has counter parties, Danko has insurers, Danko
Speaker 4: has clients who might not be similarly disposed towards the law.
Speaker 4: And so you know, even in the abstract, it's a
Speaker 4: remarkable claim. But again, the factual basis for it is
Speaker 4: just completely missing. So, you know, let's talk about who
Speaker 4: has encouraged the Biden administration to ignore an adverse rule
Speaker 4: in this case, Senator Wyden from Oregon, Congresswoman Ocasio Cortes
Speaker 4: from New York, Congresswoman Nancy Mace, a Republican, we might add,
Speaker 4: members of Congress. There is not only no one in
Speaker 4: the executive branch who has even hinted that the Biden
Speaker 4: administration would decline to comply. But in response to those
Speaker 4: congressional statements, the White House Press secretary specifically said, we
Speaker 4: are not listening to them. We are going to comply.
Speaker 4: So when Justice Alito just says, you know, the government
Speaker 4: has done nothing to dispel legitimate doubts, what else could
Speaker 4: the government do and where are those doubts coming from?
Speaker 4: And I think you know what's telling about that passage
Speaker 4: in the opinion is that he doesn't cite any sources.
Speaker 4: There's no authority provided in support of that statement. More fundamentally,
Speaker 4: I mean, June, let's just be clear, it has been,
Speaker 4: by almost anyone's reckoning, one hundred and sixty two years
Speaker 4: since the last time a president the clients to comply
Speaker 4: with a federal court order, and that was President Lincoln
Speaker 4: in the middle of the Civil War as part of
Speaker 4: the fight with Chief Justice Roger Brooks. Tawny, and I
Speaker 4: think it's remarkable not only because it was a legally
Speaker 4: irrelevant argument for Justice Alitos to make, but because the
Speaker 4: only possible factual reason to make that claim is because
Speaker 4: you are crediting conspiracy theorists in right wing media more
Speaker 4: than your credit in the official spokesperson of the Executive Branch.
Speaker 2: The Fifth Circuit is going to hear arguments on May seventeenth,
Speaker 2: but it is the most conservative of the circuits, and
Speaker 2: is it likely to change its opinion, which it expressed
Speaker 2: pretty thoroughly in a forty two page decision.
Speaker 4: I think it might. So let's be clear the panel
Speaker 4: that only stayed part of the Judge Kasmaric ruler. First
Speaker 4: it was divided two to one, and second June, that
Speaker 4: won't be the same panel that here's the government and
Speaker 4: Danko's appeals on May seventeenth, So you know, first it's
Speaker 4: going to be different judges who are going to hear
Speaker 4: this appeal. Second, these judges now have the benefit of
Speaker 4: knowing that there's a majority of Supreme Court justices who
Speaker 4: are not willing to let Judge Kasmeric's order, even as
Speaker 4: modified by the Fifth Circuit, go into effect. And third,
Speaker 4: as folks have had time to react to Judge Chasmeric's order,
Speaker 4: I mean it was keep in mind, is even today
Speaker 4: less than three weeks old, and as even conservative commentators
Speaker 4: have chanced to weigh in, I think there's been a
Speaker 4: developing consensus that there are serious problems with the plaintiffs
Speaker 4: in this case is standing. So that whatever folks think
Speaker 4: of mifipristone or the FDA or any of the administrative
Speaker 4: law arguments that Judge Chasmeric relied upon in his order.
Speaker 4: You know, this case has an enormous obstacle in the
Speaker 4: form of the planet's lack of stand in. So I
Speaker 4: don't think it is by any means a foregone conclusion
Speaker 4: that the Fifth Circuit is going to ultimate affirmed Judge Kasmeric.
Speaker 4: And if it does, I think all that will do
Speaker 4: is kee this up to go back to the Supreme Court.
Speaker 4: But if it doesn't, if you get a panel on
Speaker 4: the Fifth Circus that said, actually, we don't think these
Speaker 4: planets have stand in and so we reverse du Kasmeric
Speaker 4: and we dismissed this case. I'm sure the planeffs will
Speaker 4: go to the Supreme Court and ask the Supreme Court
Speaker 4: to review that decision. I'm not sure the Supreme Court
Speaker 4: will agree, and that I think Stuon is where we
Speaker 4: might see, you know, more of the point you made
Speaker 4: at the top, more of the Court recommitted to the
Speaker 4: idea that it really wants to leave the question of
Speaker 4: abortion access to the democratic process.
Speaker 2: Steve, I want to turn now to another topic. Senator
Speaker 2: Dick Durbin, the chair of the Senate Judiciary Committee, had
Speaker 2: invited Chief Justice John Roberts to testify before the committee
Speaker 2: regarding Supreme Court ethics. That's in light of recent revelations
Speaker 2: that Justice Clarence Thomas had gone on luxury vacations paid
Speaker 2: for by a billionaire Republican donor for decades, and also
Speaker 2: that money changed hands between the two in this sale
Speaker 2: of property. The Chief Justice declined the invitation. It was
Speaker 2: no surprise that Roberts refused to testify, and he cited
Speaker 2: separation of powers concerns and the importance of preserving judicial independence.
Speaker 2: Do you think that was the only move for him?
Speaker 4: Yes, If I'm Chief Justice Roberts, I am not voluntarily
Speaker 4: agreeing to set a precedent wherein the Chief Justice can
Speaker 4: be called before Congress anytime you know enough members of
Speaker 4: Congress think that a particular justice has acted inappropriately on
Speaker 4: the foot side, Right, a sort of an invitation to
Speaker 4: testify is about the most milk toast bin that Congress
Speaker 4: could have done. Right, there are far more aggressive things
Speaker 4: Congress could do going forward, where maybe the Chief Justice
Speaker 4: couldn't just politely decline, And I think this is where
Speaker 4: I think the story really goes next, which is, you know,
Speaker 4: we're not all going to agree on which rules should
Speaker 4: bind the Supreme Court's justices. We're not even all going
Speaker 4: to agree on whether particular behavior by particular justices violates
Speaker 4: those rules. But we all ought to at least have
Speaker 4: common cause on the point that there should be some
Speaker 4: rules that bind the Supreme Court and that bind the justices,
Speaker 4: and that those rules ought to have some meaningful peace
Speaker 4: behind them. And this is where I think, you know,
Speaker 4: the conversation ought to go next, which is, how do
Speaker 4: we create a mechanism where the justices are impelled through
Speaker 4: political pressure, through public pressure, through other mechanisms to comply
Speaker 4: with the rules as they exist, and not just to
Speaker 4: take such applause they approach And to me, I mean,
Speaker 4: there's a bill that was introduced this week by Maine
Speaker 4: Senator and Gus Kingdon by Alaska Center, at least in Murkowski,
Speaker 4: I think this is a pretty good job of actually
Speaker 4: splitting the difference. It doesn't dictate a code of conduct.
Speaker 4: It says, hey, Supreme Court, you must adopt a formal
Speaker 4: code of conduct, and you must create some mechanism for
Speaker 4: overseeing compliance with that code of conduct, and whenever there
Speaker 4: is a dispute over compliance, you must report back to
Speaker 4: us on what the dispute was. That seems to me
Speaker 4: not remotely inconsistent with the separation of powers. You know,
Speaker 4: Congress can say, hey, we're going to give you ten
Speaker 4: million dollars, but we're going to tell you what's spend
Speaker 4: it on, and you've got to report back to us
Speaker 4: on how you spent it. That's how the budget works.
Speaker 4: And then jun then we have the real conversation, which
Speaker 4: is whether any of these cases rise to the level
Speaker 4: of allowing Congress to exercise the clear constitutional authority it
Speaker 4: has to act against justices who misbehave, which is the
Speaker 4: impeachment powers. I don't think we're there, but I think
Speaker 4: we also ought to be willing to accept that for
Speaker 4: the impeachment power to be meaningful, for Congress to have
Speaker 4: any real opportunity to wield it as a check on
Speaker 4: the justices, there has to be some mechanism by which
Speaker 4: Congress can be made aware of violations of whatever the
Speaker 4: rules are.
Speaker 2: I didn't find Robert's refusal so surprising. What I did
Speaker 2: find a little surprising was this statement signed by all
Speaker 2: nine Justices vowing to follow foundational ethics, principles and practice,
Speaker 2: is because it suggests that everything's fine. They don't have
Speaker 2: any need for a formal code of conduct, despite what
Speaker 2: we've been hearing about for weeks.
Speaker 4: And I think what this goes back to is, I
Speaker 4: mean something we talk about a lot in law schools,
Speaker 4: the difference between having rules and having an effective means
Speaker 4: of enforcing them. Right, you can have the finest rules
Speaker 4: that any two humans could devise, and they would be
Speaker 4: pretty pointless if nothing happened when they were violated. And
Speaker 4: so I think the question is not whether the Supreme
Speaker 4: Court should have a code of conduct. Clearly the answer
Speaker 4: is yes. The Justices themselves even seem willing to bind
Speaker 4: themselves to at least these loose principles that achieve justice,
Speaker 4: Roberts attached to his letter. The question is what's going
Speaker 4: to happen if and when those principles are violated? And
Speaker 4: you know, I think the answer has to be for
Speaker 4: the sake of the separation of powers more than nothing.
Speaker 4: And I'm on the side that thinks that there would
Speaker 4: be separation of powers problems if Congress claims for itself
Speaker 4: the power to discipline justices who violate the rules, or
Speaker 4: Congress gave someone other than the Supreme Court the power
Speaker 4: to oversee compliance with these rules. At the same time,
Speaker 4: the Constitution gives Congress the power to impeach judges and
Speaker 4: justices entirely for those cases in which those judges and
Speaker 4: justices are not engaging in what Article three calls quote
Speaker 4: good behavior unquotes, and so it seems like it vindicates
Speaker 4: the separation of powers rather than interfering with them, for
Speaker 4: Congress to create a mechanism whereby the Court will police itself,
Speaker 4: but it will also report to Congress on its efforts.
Speaker 2: The Chief Justice also declined to investigate Clarence Thomas's ethical challenges,
Speaker 2: shall we say, but he referred to Congress's request for
Speaker 2: the investigation to the Judicial Conference of the United States.
Speaker 2: Do they do investigations or do they make policy?
Speaker 4: I mean a little bit of both. So the Judicial
Speaker 4: Conference has at least some authority under a sort of
Speaker 4: a nineteen sixties era federal statute, to engage in some
Speaker 4: investigative functions, but that's almost always been understood to be
Speaker 4: focused at the lower courts that you know, the Judicial
Speaker 4: Conference comes in when there's some investigation needed of a
Speaker 4: legend misconduct by lower court judges. We're about to see
Speaker 4: this in the context of the effort by the Chief
Speaker 4: Judge of the Federal Circuit to remove one of her colleagues.
Speaker 4: The Judicial Conference is not set up at all to
Speaker 4: handle investigations of the court, and that I think is
Speaker 4: why the King Murkowski Bill is probably a much better
Speaker 4: alternative to what Chief Judge Roberts is proposing, Because the
Speaker 4: King Murkowski Bill says, hey, Supreme Court, you know you
Speaker 4: you tell us what your rules are, and you create
Speaker 4: a mechanism for supervising internally whether your rules are being followed,
Speaker 4: and you report to us when they're not right. That,
Speaker 4: to me is exactly how you split the difference. So
Speaker 4: that in those cases where the rules are not being followed,
Speaker 4: we don't expect the courts that discipline itself, but we
Speaker 4: do expect the courts to at least identify the problems
Speaker 4: so that if Congress, the body that has the conscertorsmal
Speaker 4: authority to remove justices who fail to engage in good behavior,
Speaker 4: wants to emphacize that power, it has been means to
Speaker 4: do so.
Speaker 2: It's always so great to have you on the show, Steve,
Speaker 2: thanks so much. That's Professor Steven Vladika the University of
Speaker 2: Texas School of Law. The Supreme Court justices seemed torn
Speaker 2: about whether Congress intended to allow individuals to sue American
Speaker 2: Indian tribes in bankruptcy disputes. The Court has long applied
Speaker 2: a clear statement rule when Congress means to waive tribal
Speaker 2: sovereign immunity. Chief Justice John Roberts noted that Congress has
Speaker 2: never waived sovereign immunity without expressly using the term tribe.
Speaker 3: Well, but I mean, the biggest hurdle I think you
Speaker 3: have to get over is that they everywhere else they
Speaker 3: use the word tribe and they didn't hear and they've
Speaker 3: got a long list of other type of governmental agencies.
Speaker 3: I mean, you don't have to be in the Big
Speaker 3: four or Big five because they're I don't know. You
Speaker 3: must accounted them like at least a dozen and surely
Speaker 3: they're in the top dozen. So this is the only
Speaker 3: instance where they haven't used the word tribe or Indian
Speaker 3: when they meant to include them.
Speaker 2: Right, But the Court has also emphasized that lawmakers don't
Speaker 2: have to use specific or magic words to waive tribal
Speaker 2: sovereign immunity. Here are Justices Elena Kagan and Amy Cony Barrett,
Speaker 2: and I think that the difficulty for you is, aren't
Speaker 2: you really making it into a magic or its requirement.
Speaker 4: It's hard for me to say how that would be
Speaker 4: a hard question for the United States or for a state.
Speaker 2: So it sounds to me like you're carving out an
Speaker 2: extra special, super super clear weg My guest is Ezra Rasser,
Speaker 2: a professor at the American University Washington College of Law.
Speaker 2: Ezra tell us about the facts in this case, why
Speaker 2: it came to the Supreme Court.
Speaker 1: I mean, there's been a series of cases where people
Speaker 1: challenging the power of tribes want to undercut tribal sovereign unity.
Speaker 1: So this is just another in the theories. I think
Speaker 1: the thing that's unique, of course, on this one is
Speaker 1: that it got taken preserved, and it got taken so
Speaker 1: quickly after the Court had reaffirmed in Bay Mills that
Speaker 1: sovereign immunity still exists. And so I think it's less
Speaker 1: about the particulars of this case and more about the
Speaker 1: fact that the Court continues to take these cases and
Speaker 1: threaten to get rid of sovereign immunity.
Speaker 2: Do the facts here make the Indian tribe look bad
Speaker 2: because it involves payday loans and a man who tried
Speaker 2: to commit suicide because he was being pressured.
Speaker 1: Yeah, I mean the facts are terrible for sure, and
Speaker 1: the way in which tribes have jumped into some of
Speaker 1: these what can only be thought of as bad businesses
Speaker 1: do look terrible. But as the oral argument made clear,
Speaker 1: that isn't the real issue in the case. So, yes,
Speaker 1: they're bad facts, but the question is whether there's been
Speaker 1: abrogation of tribal sovereign immunity.
Speaker 2: Explain what exactly is tribal sovereign immunity.
Speaker 1: So the basic idea here is that they're a sovereign
Speaker 1: and you can't just sue the sovereign, meaning the government,
Speaker 1: unless the government gives you permission to it, and this
Speaker 1: is true for all types of government. For a very
Speaker 1: long time, the United States government made it hard for
Speaker 1: people that were harmed by the United States that sue them,
Speaker 1: and so people would do petitions to Congress to get
Speaker 1: recourse if the government had harmed them or they'd suffered
Speaker 1: some loss, and so tribes have that sovereign immunity as well.
Speaker 1: And the question is if Congress, you know, in passing
Speaker 1: the Bankruptcy Act, did they abrogate sovereign immunity with regard
Speaker 1: to that area of law practice, right, But it is
Speaker 1: a standard part of what being a government means is
Speaker 1: you have this immunity.
Speaker 2: I read that this case is one of the simplest
Speaker 2: the justices here this year because it involves no constitutional
Speaker 2: questions and the interpretation of a single phrase of a
Speaker 2: single statutory provision. It didn't sound that simple.
Speaker 1: Yeah, I think the challenge I would actually agree that
Speaker 1: it's simple, but for a different reason. So the simple
Speaker 1: part about it is that many times the Court has
Speaker 1: been asked what counts as waiver of sovereign immunity, and
Speaker 1: the answer has always consistently been when Congress is clear,
Speaker 1: if there's an express abrogation, then yes, the rights are lost.
Speaker 1: But if there's not express abrogation of a tribal sovereign right,
Speaker 1: then it continues. And so here there's been no express abrogation,
Speaker 1: meaning Congress has not said we are taking away tribes' rights.
Speaker 1: Therefore the rights should still exist. So as far as
Speaker 1: what the Court has done in the past. It is
Speaker 1: a very simple case that should come out very easily
Speaker 1: on the pro tribal side, but the fact that they
Speaker 1: took certain suggests that it's not going to be that clean.
Speaker 2: Also, I mean, some of the justices Amy Cony Barrett
Speaker 2: said it seemed that Congress intended to cast a wide
Speaker 2: net when described being government and dey susceptible to suits.
Speaker 1: Yeah, well, definitely, that's what she said in the oral argument,
Speaker 1: and I think for sure that's the argument against the
Speaker 1: tribes on this The problem with that argument is that
Speaker 1: that argument has been made in many cases in the past,
Speaker 1: and consistently the Court has said, no, we mean it
Speaker 1: that tribes are sovereign. And I think one of the
Speaker 1: things that should be understood by everyone, at least under
Speaker 1: federal Indian law that if Congress wants to get rid
Speaker 1: of this power of tribes, all they have to do
Speaker 1: is pass an act that says tribes don't have it.
Speaker 1: But you can't do it by implication. You can't just
Speaker 1: sort of infer that they meant to include tribes. And
Speaker 1: this case really is about, well, if they use some
Speaker 1: words that were not tribes, do those words count? And
Speaker 1: traditionally the answer has been easy. No, the fact that
Speaker 1: they took certain means that maybe we're going to open
Speaker 1: it up to more light abrogation of tribal sovereignty.
Speaker 2: Well, just as Elena Kagan said to the tribes attorney,
Speaker 2: I think the difficulty for you is, aren't you really
Speaker 2: making it into a magic words requirement? And that sort
Speaker 2: of went along with what Barrett said. She said it
Speaker 2: seemed like the tribe was asking for an extra special,
Speaker 2: super super clear rule for Indian tribes.
Speaker 1: Yeah, And I had two thoughts when I heard that part,
Speaker 1: which one is I don't see what would be wrong
Speaker 1: with requiring Congress to actually explicitly be clear that they
Speaker 1: want to get rid of this area of sovereignty for tribes. So,
Speaker 1: tribes are sovereign entities whose sovereignty pre existed the United States,
Speaker 1: and we, meaning the federal government and the United States,
Speaker 1: asserts a superior sovereignty over them. We say that we
Speaker 1: have plenary power, we can do what we want. But
Speaker 1: if we're going to say that we have such power,
Speaker 1: we should at least be clear when we exercise it.
Speaker 1: And so in that oral argument, I almost wanted them
Speaker 1: to agree that yes, that's the point is that if
Speaker 1: you're going to take away something, take it away and
Speaker 1: be clear you're taking it away. Don't make a general
Speaker 1: thing and then later ask the courts to make it larger.
Speaker 2: I mean, did you see a split among the justices,
Speaker 2: Which did you think were on which side?
Speaker 1: Yeah?
Speaker 4: I mean.
Speaker 1: So the problem is, and this goes back to the
Speaker 1: bay Mills case that was the sort of prior case
Speaker 1: on the same topic, is that we might have thought
Speaker 1: earlier that this case hadn't been dealt with through Bay Mills,
Speaker 1: which was decided in twenty fourteen. And in bay Mills,
Speaker 1: the court had a similar opportunity to get rid of
Speaker 1: sovereign immunity or really weaken it. And despite guesswork that
Speaker 1: they would do that, they actually came out on the
Speaker 1: tribal side. And so I think this is a very
Speaker 1: hard one to predict, because on the one hand, all
Speaker 1: the presidents says federal Indian law requires express abrogation, the
Speaker 1: tribe should win. On the other hand, you do have parties,
Speaker 1: and we saw this at the very beginning of the
Speaker 1: oral argument. You have justices who are concerned about Indians
Speaker 1: acting in the larger economic space of the country and
Speaker 1: are very nervous about sovereign immunity. Now they were in
Speaker 1: the descent in prior cases, but the fact that they
Speaker 1: keep taking cert suggests some of them think that eventually
Speaker 1: they'll win justice.
Speaker 2: Neil Gorsuch is often sympathetic to the Indians' rights in
Speaker 2: these cases.
Speaker 1: Where was he, I don't know, and I think we
Speaker 1: have very clear the only one that I was like,
Speaker 1: oh my gosh, this is clear where there's two. So
Speaker 1: the really clear ones were Thomas I thought at the beginning,
Speaker 1: and even the attorney for the tribes that we do
Speaker 1: understand that some of the justices are not in agreement
Speaker 1: with this right now the acknowledgement of that, and then
Speaker 1: Amy Kobi Berrett, I think also was pretty clear that
Speaker 1: she saw this, you know, big language used in the
Speaker 1: Bankruptcy Act would incorporate all governments on that part. Though
Speaker 1: there too, I thought this is weird because not only
Speaker 1: have we had precedent on sovereign immunity Kiowa and Bay Mills,
Speaker 1: we also have precedents saying tribes are not states, nor
Speaker 1: are they foreign governments. And since that's what's listed in
Speaker 1: the Bankruptcy Act, there seems to be pretty clear. This
Speaker 1: was the first of the Cherokee cases. Pretty clear statements
Speaker 1: from the Court when it first considered what Indians were.
Speaker 1: They were very clear they are not foreign nations and
Speaker 1: they are not states, which would seem to be what
Speaker 1: the categories discussed in the statue were.
Speaker 2: Tell us about the split in the circuit courts on
Speaker 2: this issue.
Speaker 1: So to me, that makes sent So one of the
Speaker 1: things is that I think that the precedent on this
Speaker 1: case is pretty easy. But the ask from tribes to
Speaker 1: not Indians who are not familiar with tribal sovereignty, that
Speaker 1: are nervous about tribes acting in the larger economy is.
Speaker 4: A big one.
Speaker 1: And anytime that there's a big ask, and the big
Speaker 1: ask here is recognize our sovereignty and when push comes
Speaker 1: to sup we can rely on that to protect us
Speaker 1: against suit. That's a hard ask to make. And so
Speaker 1: the fact that courts are coming out different ways is
Speaker 1: somewhat natural. It's not surprising.
Speaker 2: So in this case, the first circuit ruled against the
Speaker 2: Indian tribes. So isn't it normally that the Supreme Court
Speaker 2: takes a case because they want to reverse the lower court.
Speaker 1: I think this is one of those that it could
Speaker 1: be that way. I just don't know it. This isn't
Speaker 1: might be very nervous, and I don't know how to
Speaker 1: predict it all. When bay Mills came up, that was
Speaker 1: the case that I followed more. And when bay Mills
Speaker 1: came up, I, like many of us, were very pessimistic
Speaker 1: about what the court was going to do there, and
Speaker 1: they didn't go that way. You know, they almost were
Speaker 1: apologetic in saying, like, we're doing this because the president
Speaker 1: is such that we have no choice. This one seems
Speaker 1: so in line with that. And it's not been that
Speaker 1: long since they so I don't understand why they would
Speaker 1: feel the need except to get rid of it. But
Speaker 1: I could be wrong.
Speaker 2: You hope you're wrong, right, Yeah, I.
Speaker 1: Hope I'm wrong. I mean, clearly, the challenge on this
Speaker 1: is that there's got to be a solution to people
Speaker 1: that are harmed by what a tribe's doing. But it
Speaker 1: doesn't have to be done or it shouldn't be done
Speaker 1: by the courts imposing it in the absence of a
Speaker 1: clear statement by Congress, and in many ways, tribes themselves
Speaker 1: are likely to come up with solutions that would be
Speaker 1: all to respect their sovereignty and respect the need for recourse,
Speaker 1: like by people harmed by tribal enterprises. So I think
Speaker 1: the question is do we impose that downward on tribes
Speaker 1: without a clear statement or not.
Speaker 2: Thanks so much, Ezra. That's Professor Ezra Rosser of the
Speaker 2: American University Washington College of Law. I'm June Grosso, and
Speaker 2: you're listening to Bloomberg.