WEBVTT - The Strange Dissent of Samuel Alito 0:00:03.200 --> 0:00:08.000 This is Bloomberg Law with June Brusso from Bloomberg Radio. 0:00:10.320 --> 0:00:13.600 The legal fight over the abortion pill goes on. We 0:00:13.800 --> 0:00:16.200 believe that we were prevailing the courts. We believe that 0:00:16.239 --> 0:00:18.520 the law is on our side, and we're going to 0:00:18.560 --> 0:00:20.880 continue to fight for millions of women across the country. 0:00:21.040 --> 0:00:24.000 That's White House Press Secretary Kareem Jean Pierre. 0:00:24.320 --> 0:00:24.480 As. 0:00:24.520 --> 0:00:29.120 The controversial case over mifipristone returned to the Fifth Circuit 0:00:29.160 --> 0:00:33.040 Court of Appeals after the Supreme Court last Friday blocked 0:00:33.080 --> 0:00:37.000 to Texas judges restrictions from taking effect, keeping the drug 0:00:37.080 --> 0:00:40.840 fully available while the legal fight moves forward. My guest 0:00:40.920 --> 0:00:44.080 is constitutional law expert Stephen Vladik, a professor at the 0:00:44.240 --> 0:00:47.559 University of Texas School of Law. Does the Supreme Court's 0:00:47.680 --> 0:00:52.599 decision vindicate the Court's majority opinion in Dobbs, saying that 0:00:53.240 --> 0:00:58.160 questions about abortion would be left to the political process. Although, 0:00:58.360 --> 0:01:00.800 when we'll get to this in a moment, the justice 0:01:00.840 --> 0:01:05.200 who wrote that opinion, Samuel Alito, dissented here. Strangely enough, I. 0:01:05.160 --> 0:01:07.680 Don't really think that's a great framing. Is only because 0:01:07.720 --> 0:01:10.440 I think it reads a lot more into this unsigned, 0:01:10.480 --> 0:01:13.640 unexplained order than is reasonable under the circumstances. I think 0:01:13.680 --> 0:01:16.600 it'll be easier to say that if the Court ultimately 0:01:16.680 --> 0:01:19.440 ends up taking this case on the merits and ends 0:01:19.520 --> 0:01:23.560 up reversing Judge Kasmerican siding with the federal government. All 0:01:23.600 --> 0:01:27.000 that I m Friday's order really underscores is that there 0:01:27.080 --> 0:01:30.039 was a majority of justices who bought sort of the 0:01:30.040 --> 0:01:33.800 irreparable harm argument. Who bought that. You know, it really 0:01:33.840 --> 0:01:38.319 would cause chaos and disruption if Judge Chasmerics order were 0:01:38.360 --> 0:01:40.480 allowed to go into effect while the case works as 0:01:40.520 --> 0:01:42.959 way through the court. In that respect, student actually strikes 0:01:43.000 --> 0:01:46.640 me as something of an old school emergency intervention from 0:01:46.640 --> 0:01:48.880 the justices, where it really is sort of purely about 0:01:48.880 --> 0:01:52.600 the equities and not necessarily reflective of you on the merits. 0:01:53.160 --> 0:01:58.160 So let's talk about that dissent by Alito. In your newsletter, 0:01:58.200 --> 0:02:01.840 you discussed three claims Elito made in his descent. First, 0:02:01.920 --> 0:02:06.200 his bitter rant about the shadow docket, where he cachede 0:02:06.240 --> 0:02:09.880 on Justices Elena Kaig and Sonya Soto Mayor and Amy 0:02:09.919 --> 0:02:10.720 Cony Barrett. 0:02:11.000 --> 0:02:14.920 Justice Alito has been very sensitive to criticisms of the 0:02:14.919 --> 0:02:17.200 shadow docket. This is not the first time he gave 0:02:17.240 --> 0:02:19.840 a whole speech at Notre Dame Law School in September 0:02:19.880 --> 0:02:22.240 of twenty twenty one, right in the middle of the 0:02:22.240 --> 0:02:25.640 first big public backlash after the Court's ruling in the 0:02:25.680 --> 0:02:28.359 Texas six week abortion ban case. You know, I think 0:02:28.400 --> 0:02:32.919 he has this sense that those who criticize the Court's 0:02:32.960 --> 0:02:36.799 increased use of emergency orders of unsigned, unexplained rulings in 0:02:36.880 --> 0:02:40.520 recent years to change the status quo are really objected 0:02:40.639 --> 0:02:44.520 to intervention as such, as opposed to a more nuanced 0:02:44.520 --> 0:02:47.400 story about when the Court's intervening and why, and so 0:02:47.440 --> 0:02:50.560 from his perspective, you know, when justices who have been 0:02:50.600 --> 0:02:56.240 critical of prior intervention are nevertheless voting to intervene, as 0:02:56.360 --> 0:02:58.680 the majority did on Friday night, you know, to him, 0:02:58.720 --> 0:03:02.400 that's hypocrisy. I think that's ironic, and at least two respects. First, 0:03:02.560 --> 0:03:05.880 he uses that hypocrisy to justify hypocrisy of his own. 0:03:06.200 --> 0:03:09.040 I mean, he expressly says, you know, I didn't agree 0:03:09.080 --> 0:03:10.760 with them then, but if they're going to do it, 0:03:10.800 --> 0:03:12.960 then I'm going to do what they did. But the 0:03:12.960 --> 0:03:15.880 second is I think that just really really sort of 0:03:16.000 --> 0:03:19.880 marginalizes what the criticisms of the Shato docket have been, 0:03:20.080 --> 0:03:23.760 which is not that the court is ever intervening, right. 0:03:23.760 --> 0:03:27.079 I mean, any appellate court is going to have circumstances 0:03:27.080 --> 0:03:30.080 where it has to intervene early in the case to 0:03:30.120 --> 0:03:34.079 preserve the status quo pending appeal. That's not new, that's 0:03:34.120 --> 0:03:38.120 not exceptional. Rather, the criticisms, at least from people like me, 0:03:38.840 --> 0:03:41.160 have been that the way the Court has been using 0:03:41.200 --> 0:03:43.720 this power in the last five or six years has 0:03:43.800 --> 0:03:47.560 been in defiance of historical norms for when the court 0:03:47.600 --> 0:03:52.000 should intervene, have been in defiance of the procedural and 0:03:52.160 --> 0:03:57.160 jurisdictional rules governing when the court can should intervene, and 0:03:57.520 --> 0:04:01.360 worst of all, have been inconsistent in when the Court 0:04:01.360 --> 0:04:04.200 has intervened in ways that really don't map on to 0:04:04.320 --> 0:04:08.560 any coherent, neutral legal principle so much as it maps 0:04:08.600 --> 0:04:12.160 on to the partisan valance of the dispute. That's the criticism. Now, 0:04:12.200 --> 0:04:14.400 folks may not agree with that criticism. 0:04:14.440 --> 0:04:15.240 That's fine. 0:04:15.800 --> 0:04:18.839 But I think what's frustrating about Alito's dissent is that 0:04:19.200 --> 0:04:22.520 he's basically knocking down a straw man when he says, 0:04:22.680 --> 0:04:25.479 you know, you guys have been opposed to intervention, and 0:04:25.560 --> 0:04:27.760 yet you're doing it here like that's not what the 0:04:27.800 --> 0:04:28.840 conversation has been. 0:04:29.240 --> 0:04:33.400 He also says that the Biden administration has unclean hands, 0:04:33.440 --> 0:04:34.400 which is a legal term. 0:04:34.480 --> 0:04:37.760 Explain that sort of reinforcing I think the view of 0:04:37.839 --> 0:04:40.760 Friday's intervention that this was really about the equities. When 0:04:40.760 --> 0:04:43.520 a court is asked to intervene at an early stage 0:04:43.520 --> 0:04:45.680 to either grant a stay or list to stay, what 0:04:45.839 --> 0:04:47.960 is really supposed to do is balance the equities, which is, 0:04:48.000 --> 0:04:50.800 you know, who would be harmed more by the two 0:04:50.880 --> 0:04:53.080 competing rules we could hand down and by the two 0:04:53.160 --> 0:04:56.440 competing sort of universes we could create while this case 0:04:56.480 --> 0:04:58.560 makes its way through the courts, and as an exercise 0:04:58.600 --> 0:05:01.800 of equitable power, it is by the idea that like 0:05:02.000 --> 0:05:05.359 parties that are acting badly should not be entitled to release. 0:05:05.440 --> 0:05:08.080 So one of his arguments for why the FDA should 0:05:08.120 --> 0:05:10.760 not have been entitled to his day is because he 0:05:11.160 --> 0:05:15.720 believes he maintains that the irreparable harm that the government 0:05:15.800 --> 0:05:18.600 said was going to result from allowing Chasmerics ruling to 0:05:18.640 --> 0:05:21.320 go into effects was at least to some degree created 0:05:21.440 --> 0:05:25.320 by the government through its litigation behavior. In the other 0:05:25.920 --> 0:05:28.720 myth Ofpristone case, the one that's pending in the Eastern 0:05:28.760 --> 0:05:32.120 District of Washington and Spokane. And you know what's remarkable 0:05:32.120 --> 0:05:35.480 about that claim, June is, First, I think there are 0:05:35.520 --> 0:05:38.839 any number of ways in which Judge Chasmerics ruling would 0:05:38.920 --> 0:05:42.159 have creative chaos all on his own, And he doesn't 0:05:42.200 --> 0:05:44.760 dispute that. He just suggests that the government's argument was 0:05:44.839 --> 0:05:49.000 about chaos as between the conflict between Chasmartics ruling and 0:05:49.040 --> 0:05:52.440 the Spokane ruling. But second, the things he accuses the 0:05:52.480 --> 0:05:56.719 government of doing are factually incorrect. He says the government 0:05:56.800 --> 0:06:01.159 did not appeal the Spokane ruling. Well, that time hasn't 0:06:01.240 --> 0:06:03.680 run yet. The government still has lots of time to appeal, 0:06:03.720 --> 0:06:07.240 and I suspective will. He said the government opposed intervention 0:06:07.880 --> 0:06:11.320 by seven read states in that case, implying that like 0:06:11.440 --> 0:06:15.320 the government tries to prevent them from appealing that decision. 0:06:15.720 --> 0:06:18.680 He doesn't tell the reader that actually the intervention request 0:06:18.720 --> 0:06:21.200 had nothing to do with an appeal and actually came 0:06:21.279 --> 0:06:24.080 even before the injunction was issued in that case. So 0:06:24.400 --> 0:06:27.200 it's a remarkable series of claims, Dune, because it's not 0:06:27.400 --> 0:06:31.120 just that they are in some respects hypocritical and inconsistent 0:06:31.160 --> 0:06:33.479 with his own prior behavior, but he is based in 0:06:33.600 --> 0:06:37.400 his arguments on students that are just not true, and 0:06:37.440 --> 0:06:40.600 indeed on points that have plenty of receipts that can 0:06:40.640 --> 0:06:42.200 be deployed to push back against them. 0:06:43.120 --> 0:06:45.479 So what hit me the most when I read this, 0:06:45.680 --> 0:06:49.800 What I found astonishing is this sentence. The government has 0:06:49.839 --> 0:06:53.000 not dispelled legitimate doubts that it would even obey an 0:06:53.080 --> 0:06:56.159 unfavorable order in these cases, much less that it would 0:06:56.240 --> 0:06:59.839 choose to take enforcement actions to which it has strong objection. 0:07:00.800 --> 0:07:02.640 I don't know where he got that idea that the 0:07:02.680 --> 0:07:05.680 Biden administration was not going to obey a court order. 0:07:07.520 --> 0:07:09.240 Well, I mean, I fear that he got that from 0:07:09.440 --> 0:07:11.880 right wing media. But let's back up the second right. 0:07:11.920 --> 0:07:14.320 I mean, so the unclean hands argument is why he 0:07:14.440 --> 0:07:17.480 said the FBA was not enteled to emergency release. But 0:07:17.480 --> 0:07:21.000 there was another party in this case, Danko Laboratories, one 0:07:21.040 --> 0:07:24.680 of the two US sponsors or distributors of mister Pristone. 0:07:24.960 --> 0:07:27.239 And Danko said, you know, hey, we're not the government. 0:07:27.520 --> 0:07:29.800 We're just a company with the bottom line, and if 0:07:29.840 --> 0:07:32.640 you allow Chasmeric's rule and to go into effect, our 0:07:32.680 --> 0:07:34.560 bottom line is going to take a huge hit. And 0:07:34.600 --> 0:07:36.560 Alito just sort of waves his hands and says, well, 0:07:36.720 --> 0:07:39.200 you know, the Biden administration is not going to prosecute 0:07:39.280 --> 0:07:44.440 you for basically for violating Judge Chasmeric's order. And you know, dude, first, 0:07:44.480 --> 0:07:47.240 that's a remarkable position to take in the abstract that 0:07:47.520 --> 0:07:50.840 you know, a company is not harmed because it might 0:07:50.920 --> 0:07:53.640 not be prosecuted for breaking the law. Like, hey, company, 0:07:53.680 --> 0:07:56.600 break the law, You'll be fine. Even if Danko were 0:07:56.640 --> 0:07:59.680 inclined to take such a cavalier approach to the rule 0:07:59.680 --> 0:08:04.120 of law. Danko has counter parties, Danko has insurers, Danko 0:08:04.240 --> 0:08:09.160 has clients who might not be similarly disposed towards the law. 0:08:09.600 --> 0:08:11.880 And so you know, even in the abstract, it's a 0:08:11.880 --> 0:08:15.640 remarkable claim. But again, the factual basis for it is 0:08:15.680 --> 0:08:18.520 just completely missing. So, you know, let's talk about who 0:08:18.600 --> 0:08:22.000 has encouraged the Biden administration to ignore an adverse rule 0:08:22.000 --> 0:08:26.120 in this case, Senator Wyden from Oregon, Congresswoman Ocasio Cortes 0:08:26.120 --> 0:08:29.560 from New York, Congresswoman Nancy Mace, a Republican, we might add, 0:08:29.840 --> 0:08:32.560 members of Congress. There is not only no one in 0:08:32.600 --> 0:08:35.240 the executive branch who has even hinted that the Biden 0:08:35.280 --> 0:08:38.680 administration would decline to comply. But in response to those 0:08:38.720 --> 0:08:42.560 congressional statements, the White House Press secretary specifically said, we 0:08:42.640 --> 0:08:45.320 are not listening to them. We are going to comply. 0:08:45.880 --> 0:08:48.320 So when Justice Alito just says, you know, the government 0:08:48.320 --> 0:08:51.800 has done nothing to dispel legitimate doubts, what else could 0:08:51.800 --> 0:08:54.880 the government do and where are those doubts coming from? 0:08:54.880 --> 0:08:57.319 And I think you know what's telling about that passage 0:08:57.320 --> 0:08:59.960 in the opinion is that he doesn't cite any sources. 0:09:00.080 --> 0:09:03.520 There's no authority provided in support of that statement. More fundamentally, 0:09:03.520 --> 0:09:05.520 I mean, June, let's just be clear, it has been, 0:09:05.720 --> 0:09:09.959 by almost anyone's reckoning, one hundred and sixty two years 0:09:10.400 --> 0:09:13.160 since the last time a president the clients to comply 0:09:13.320 --> 0:09:16.320 with a federal court order, and that was President Lincoln 0:09:16.360 --> 0:09:18.200 in the middle of the Civil War as part of 0:09:18.200 --> 0:09:20.760 the fight with Chief Justice Roger Brooks. Tawny, and I 0:09:20.800 --> 0:09:24.440 think it's remarkable not only because it was a legally 0:09:24.520 --> 0:09:28.079 irrelevant argument for Justice Alitos to make, but because the 0:09:28.160 --> 0:09:32.120 only possible factual reason to make that claim is because 0:09:32.320 --> 0:09:37.280 you are crediting conspiracy theorists in right wing media more 0:09:37.280 --> 0:09:40.640 than your credit in the official spokesperson of the Executive Branch. 0:09:40.760 --> 0:09:44.480 The Fifth Circuit is going to hear arguments on May seventeenth, 0:09:44.760 --> 0:09:47.880 but it is the most conservative of the circuits, and 0:09:48.280 --> 0:09:51.680 is it likely to change its opinion, which it expressed 0:09:51.679 --> 0:09:54.679 pretty thoroughly in a forty two page decision. 0:09:55.200 --> 0:09:57.360 I think it might. So let's be clear the panel 0:09:57.440 --> 0:10:00.559 that only stayed part of the Judge Kasmaric ruler. First 0:10:00.559 --> 0:10:03.079 it was divided two to one, and second June, that 0:10:03.160 --> 0:10:05.640 won't be the same panel that here's the government and 0:10:05.720 --> 0:10:09.079 Danko's appeals on May seventeenth, So you know, first it's 0:10:09.120 --> 0:10:11.040 going to be different judges who are going to hear 0:10:11.080 --> 0:10:14.000 this appeal. Second, these judges now have the benefit of 0:10:14.120 --> 0:10:16.920 knowing that there's a majority of Supreme Court justices who 0:10:17.000 --> 0:10:20.000 are not willing to let Judge Kasmeric's order, even as 0:10:20.040 --> 0:10:22.720 modified by the Fifth Circuit, go into effect. And third, 0:10:22.920 --> 0:10:26.360 as folks have had time to react to Judge Chasmeric's order, 0:10:26.400 --> 0:10:28.120 I mean it was keep in mind, is even today 0:10:28.200 --> 0:10:32.000 less than three weeks old, and as even conservative commentators 0:10:32.040 --> 0:10:34.160 have chanced to weigh in, I think there's been a 0:10:34.280 --> 0:10:38.400 developing consensus that there are serious problems with the plaintiffs 0:10:38.559 --> 0:10:41.839 in this case is standing. So that whatever folks think 0:10:41.880 --> 0:10:46.000 of mifipristone or the FDA or any of the administrative 0:10:46.040 --> 0:10:49.400 law arguments that Judge Chasmeric relied upon in his order. 0:10:49.840 --> 0:10:52.400 You know, this case has an enormous obstacle in the 0:10:52.440 --> 0:10:55.120 form of the planet's lack of stand in. So I 0:10:55.120 --> 0:10:57.720 don't think it is by any means a foregone conclusion 0:10:58.120 --> 0:11:01.439 that the Fifth Circuit is going to ultimate affirmed Judge Kasmeric. 0:11:01.800 --> 0:11:03.400 And if it does, I think all that will do 0:11:03.520 --> 0:11:05.360 is kee this up to go back to the Supreme Court. 0:11:05.559 --> 0:11:07.439 But if it doesn't, if you get a panel on 0:11:07.480 --> 0:11:09.839 the Fifth Circus that said, actually, we don't think these 0:11:09.920 --> 0:11:13.280 planets have stand in and so we reverse du Kasmeric 0:11:13.320 --> 0:11:16.200 and we dismissed this case. I'm sure the planeffs will 0:11:16.240 --> 0:11:18.160 go to the Supreme Court and ask the Supreme Court 0:11:18.240 --> 0:11:20.800 to review that decision. I'm not sure the Supreme Court 0:11:20.800 --> 0:11:23.400 will agree, and that I think Stuon is where we 0:11:23.480 --> 0:11:25.920 might see, you know, more of the point you made 0:11:25.960 --> 0:11:28.560 at the top, more of the Court recommitted to the 0:11:28.640 --> 0:11:31.160 idea that it really wants to leave the question of 0:11:31.200 --> 0:11:33.360 abortion access to the democratic process. 0:11:33.960 --> 0:11:36.679 Steve, I want to turn now to another topic. Senator 0:11:36.679 --> 0:11:39.960 Dick Durbin, the chair of the Senate Judiciary Committee, had 0:11:40.000 --> 0:11:43.960 invited Chief Justice John Roberts to testify before the committee 0:11:43.960 --> 0:11:48.679 regarding Supreme Court ethics. That's in light of recent revelations 0:11:48.720 --> 0:11:53.200 that Justice Clarence Thomas had gone on luxury vacations paid 0:11:53.280 --> 0:11:57.319 for by a billionaire Republican donor for decades, and also 0:11:57.440 --> 0:12:00.320 that money changed hands between the two in this sale 0:12:00.320 --> 0:12:04.440 of property. The Chief Justice declined the invitation. It was 0:12:04.440 --> 0:12:08.679 no surprise that Roberts refused to testify, and he cited 0:12:08.720 --> 0:12:14.040 separation of powers concerns and the importance of preserving judicial independence. 0:12:14.640 --> 0:12:17.559 Do you think that was the only move for him? 0:12:17.960 --> 0:12:21.480 Yes, If I'm Chief Justice Roberts, I am not voluntarily 0:12:21.520 --> 0:12:24.800 agreeing to set a precedent wherein the Chief Justice can 0:12:24.840 --> 0:12:28.880 be called before Congress anytime you know enough members of 0:12:28.960 --> 0:12:32.120 Congress think that a particular justice has acted inappropriately on 0:12:32.160 --> 0:12:34.880 the foot side, Right, a sort of an invitation to 0:12:34.960 --> 0:12:38.760 testify is about the most milk toast bin that Congress 0:12:38.760 --> 0:12:41.720 could have done. Right, there are far more aggressive things 0:12:41.800 --> 0:12:44.960 Congress could do going forward, where maybe the Chief Justice 0:12:44.960 --> 0:12:47.600 couldn't just politely decline, And I think this is where 0:12:47.679 --> 0:12:50.240 I think the story really goes next, which is, you know, 0:12:50.440 --> 0:12:54.480 we're not all going to agree on which rules should 0:12:54.480 --> 0:12:57.680 bind the Supreme Court's justices. We're not even all going 0:12:57.720 --> 0:13:01.880 to agree on whether particular behavior by particular justices violates 0:13:01.920 --> 0:13:04.360 those rules. But we all ought to at least have 0:13:04.480 --> 0:13:07.439 common cause on the point that there should be some 0:13:07.600 --> 0:13:11.000 rules that bind the Supreme Court and that bind the justices, 0:13:11.440 --> 0:13:14.559 and that those rules ought to have some meaningful peace 0:13:14.720 --> 0:13:16.640 behind them. And this is where I think, you know, 0:13:16.720 --> 0:13:19.040 the conversation ought to go next, which is, how do 0:13:19.120 --> 0:13:25.000 we create a mechanism where the justices are impelled through 0:13:25.160 --> 0:13:29.400 political pressure, through public pressure, through other mechanisms to comply 0:13:29.559 --> 0:13:31.320 with the rules as they exist, and not just to 0:13:31.360 --> 0:13:33.560 take such applause they approach And to me, I mean, 0:13:33.559 --> 0:13:36.160 there's a bill that was introduced this week by Maine 0:13:36.280 --> 0:13:39.160 Senator and Gus Kingdon by Alaska Center, at least in Murkowski, 0:13:39.520 --> 0:13:41.520 I think this is a pretty good job of actually 0:13:41.520 --> 0:13:44.320 splitting the difference. It doesn't dictate a code of conduct. 0:13:44.320 --> 0:13:47.440 It says, hey, Supreme Court, you must adopt a formal 0:13:47.480 --> 0:13:51.840 code of conduct, and you must create some mechanism for 0:13:52.240 --> 0:13:56.319 overseeing compliance with that code of conduct, and whenever there 0:13:56.400 --> 0:14:00.200 is a dispute over compliance, you must report back to 0:14:00.320 --> 0:14:02.839 us on what the dispute was. That seems to me 0:14:03.040 --> 0:14:06.040 not remotely inconsistent with the separation of powers. You know, 0:14:06.120 --> 0:14:07.959 Congress can say, hey, we're going to give you ten 0:14:08.000 --> 0:14:10.080 million dollars, but we're going to tell you what's spend 0:14:10.080 --> 0:14:11.520 it on, and you've got to report back to us 0:14:11.520 --> 0:14:14.280 on how you spent it. That's how the budget works. 0:14:14.320 --> 0:14:16.800 And then jun then we have the real conversation, which 0:14:16.800 --> 0:14:18.960 is whether any of these cases rise to the level 0:14:19.640 --> 0:14:23.680 of allowing Congress to exercise the clear constitutional authority it 0:14:23.760 --> 0:14:26.680 has to act against justices who misbehave, which is the 0:14:26.680 --> 0:14:29.520 impeachment powers. I don't think we're there, but I think 0:14:29.560 --> 0:14:32.120 we also ought to be willing to accept that for 0:14:32.240 --> 0:14:34.920 the impeachment power to be meaningful, for Congress to have 0:14:34.960 --> 0:14:38.280 any real opportunity to wield it as a check on 0:14:38.320 --> 0:14:41.920 the justices, there has to be some mechanism by which 0:14:42.400 --> 0:14:45.600 Congress can be made aware of violations of whatever the 0:14:45.640 --> 0:14:46.080 rules are. 0:14:46.480 --> 0:14:50.920 I didn't find Robert's refusal so surprising. What I did 0:14:50.960 --> 0:14:54.880 find a little surprising was this statement signed by all 0:14:55.000 --> 0:14:59.960 nine Justices vowing to follow foundational ethics, principles and practice, 0:15:00.160 --> 0:15:04.360 is because it suggests that everything's fine. They don't have 0:15:04.520 --> 0:15:07.680 any need for a formal code of conduct, despite what 0:15:07.720 --> 0:15:09.560 we've been hearing about for weeks. 0:15:09.920 --> 0:15:11.760 And I think what this goes back to is, I 0:15:11.760 --> 0:15:13.600 mean something we talk about a lot in law schools, 0:15:13.600 --> 0:15:17.280 the difference between having rules and having an effective means 0:15:17.280 --> 0:15:20.440 of enforcing them. Right, you can have the finest rules 0:15:20.440 --> 0:15:23.560 that any two humans could devise, and they would be 0:15:23.560 --> 0:15:26.480 pretty pointless if nothing happened when they were violated. And 0:15:26.520 --> 0:15:28.960 so I think the question is not whether the Supreme 0:15:28.960 --> 0:15:31.120 Court should have a code of conduct. Clearly the answer 0:15:31.160 --> 0:15:33.640 is yes. The Justices themselves even seem willing to bind 0:15:33.640 --> 0:15:37.000 themselves to at least these loose principles that achieve justice, 0:15:37.040 --> 0:15:39.680 Roberts attached to his letter. The question is what's going 0:15:39.760 --> 0:15:42.560 to happen if and when those principles are violated? And 0:15:42.720 --> 0:15:44.600 you know, I think the answer has to be for 0:15:44.680 --> 0:15:47.760 the sake of the separation of powers more than nothing. 0:15:48.720 --> 0:15:51.960 And I'm on the side that thinks that there would 0:15:52.000 --> 0:15:55.760 be separation of powers problems if Congress claims for itself 0:15:56.280 --> 0:15:59.800 the power to discipline justices who violate the rules, or 0:16:00.120 --> 0:16:03.720 Congress gave someone other than the Supreme Court the power 0:16:03.720 --> 0:16:07.280 to oversee compliance with these rules. At the same time, 0:16:07.920 --> 0:16:11.160 the Constitution gives Congress the power to impeach judges and 0:16:11.320 --> 0:16:14.720 justices entirely for those cases in which those judges and 0:16:14.840 --> 0:16:18.160 justices are not engaging in what Article three calls quote 0:16:18.160 --> 0:16:22.120 good behavior unquotes, and so it seems like it vindicates 0:16:22.160 --> 0:16:25.840 the separation of powers rather than interfering with them, for 0:16:25.960 --> 0:16:29.920 Congress to create a mechanism whereby the Court will police itself, 0:16:30.240 --> 0:16:33.000 but it will also report to Congress on its efforts. 0:16:33.440 --> 0:16:39.680 The Chief Justice also declined to investigate Clarence Thomas's ethical challenges, 0:16:39.720 --> 0:16:43.160 shall we say, but he referred to Congress's request for 0:16:43.200 --> 0:16:47.360 the investigation to the Judicial Conference of the United States. 0:16:48.160 --> 0:16:50.960 Do they do investigations or do they make policy? 0:16:51.960 --> 0:16:53.360 I mean a little bit of both. So the Judicial 0:16:53.360 --> 0:16:57.440 Conference has at least some authority under a sort of 0:16:57.440 --> 0:17:00.680 a nineteen sixties era federal statute, to engage in some 0:17:00.800 --> 0:17:04.840 investigative functions, but that's almost always been understood to be 0:17:04.920 --> 0:17:07.560 focused at the lower courts that you know, the Judicial 0:17:07.600 --> 0:17:10.600 Conference comes in when there's some investigation needed of a 0:17:10.680 --> 0:17:13.680 legend misconduct by lower court judges. We're about to see 0:17:13.680 --> 0:17:15.640 this in the context of the effort by the Chief 0:17:15.720 --> 0:17:19.200 Judge of the Federal Circuit to remove one of her colleagues. 0:17:19.520 --> 0:17:21.919 The Judicial Conference is not set up at all to 0:17:22.000 --> 0:17:25.119 handle investigations of the court, and that I think is 0:17:25.160 --> 0:17:29.040 why the King Murkowski Bill is probably a much better 0:17:29.040 --> 0:17:32.399 alternative to what Chief Judge Roberts is proposing, Because the 0:17:32.480 --> 0:17:35.440 King Murkowski Bill says, hey, Supreme Court, you know you 0:17:36.800 --> 0:17:39.760 you tell us what your rules are, and you create 0:17:39.760 --> 0:17:44.240 a mechanism for supervising internally whether your rules are being followed, 0:17:44.720 --> 0:17:48.159 and you report to us when they're not right. That, 0:17:48.320 --> 0:17:50.280 to me is exactly how you split the difference. So 0:17:50.359 --> 0:17:53.280 that in those cases where the rules are not being followed, 0:17:53.760 --> 0:17:56.240 we don't expect the courts that discipline itself, but we 0:17:56.320 --> 0:17:59.200 do expect the courts to at least identify the problems 0:17:59.400 --> 0:18:02.359 so that if Congress, the body that has the conscertorsmal 0:18:02.400 --> 0:18:06.240 authority to remove justices who fail to engage in good behavior, 0:18:06.760 --> 0:18:08.840 wants to emphacize that power, it has been means to 0:18:08.880 --> 0:18:09.200 do so. 0:18:09.520 --> 0:18:11.520 It's always so great to have you on the show, Steve, 0:18:11.600 --> 0:18:14.879 thanks so much. That's Professor Steven Vladika the University of 0:18:14.920 --> 0:18:19.960 Texas School of Law. The Supreme Court justices seemed torn 0:18:20.000 --> 0:18:23.920 about whether Congress intended to allow individuals to sue American 0:18:23.960 --> 0:18:27.960 Indian tribes in bankruptcy disputes. The Court has long applied 0:18:28.000 --> 0:18:31.720 a clear statement rule when Congress means to waive tribal 0:18:31.800 --> 0:18:35.800 sovereign immunity. Chief Justice John Roberts noted that Congress has 0:18:35.880 --> 0:18:40.360 never waived sovereign immunity without expressly using the term tribe. 0:18:41.280 --> 0:18:43.679 Well, but I mean, the biggest hurdle I think you 0:18:43.720 --> 0:18:46.000 have to get over is that they everywhere else they 0:18:46.080 --> 0:18:49.040 use the word tribe and they didn't hear and they've 0:18:49.080 --> 0:18:53.600 got a long list of other type of governmental agencies. 0:18:54.080 --> 0:18:56.080 I mean, you don't have to be in the Big 0:18:56.119 --> 0:18:59.000 four or Big five because they're I don't know. You 0:18:59.040 --> 0:19:01.960 must accounted them like at least a dozen and surely 0:19:02.000 --> 0:19:05.120 they're in the top dozen. So this is the only 0:19:05.240 --> 0:19:08.720 instance where they haven't used the word tribe or Indian 0:19:08.720 --> 0:19:09.840 when they meant to include them. 0:19:09.880 --> 0:19:13.840 Right, But the Court has also emphasized that lawmakers don't 0:19:13.880 --> 0:19:17.440 have to use specific or magic words to waive tribal 0:19:17.520 --> 0:19:22.000 sovereign immunity. Here are Justices Elena Kagan and Amy Cony Barrett, 0:19:22.680 --> 0:19:26.639 and I think that the difficulty for you is, aren't 0:19:26.640 --> 0:19:29.280 you really making it into a magic or its requirement. 0:19:30.760 --> 0:19:32.159 It's hard for me to say how that would be 0:19:32.240 --> 0:19:34.520 a hard question for the United States or for a state. 0:19:34.600 --> 0:19:36.560 So it sounds to me like you're carving out an 0:19:36.600 --> 0:19:40.960 extra special, super super clear weg My guest is Ezra Rasser, 0:19:41.200 --> 0:19:44.800 a professor at the American University Washington College of Law. 0:19:45.119 --> 0:19:47.840 Ezra tell us about the facts in this case, why 0:19:47.920 --> 0:19:49.600 it came to the Supreme Court. 0:19:50.040 --> 0:19:54.159 I mean, there's been a series of cases where people 0:19:54.280 --> 0:20:00.440 challenging the power of tribes want to undercut tribal sovereign unity. 0:20:00.640 --> 0:20:05.080 So this is just another in the theories. I think 0:20:05.160 --> 0:20:08.399 the thing that's unique, of course, on this one is 0:20:08.440 --> 0:20:12.320 that it got taken preserved, and it got taken so 0:20:12.640 --> 0:20:16.560 quickly after the Court had reaffirmed in Bay Mills that 0:20:17.000 --> 0:20:21.720 sovereign immunity still exists. And so I think it's less 0:20:21.840 --> 0:20:24.679 about the particulars of this case and more about the 0:20:24.680 --> 0:20:27.920 fact that the Court continues to take these cases and 0:20:28.000 --> 0:20:29.800 threaten to get rid of sovereign immunity. 0:20:30.119 --> 0:20:32.400 Do the facts here make the Indian tribe look bad 0:20:32.440 --> 0:20:35.800 because it involves payday loans and a man who tried 0:20:35.840 --> 0:20:38.520 to commit suicide because he was being pressured. 0:20:38.840 --> 0:20:41.520 Yeah, I mean the facts are terrible for sure, and 0:20:41.760 --> 0:20:44.439 the way in which tribes have jumped into some of 0:20:44.480 --> 0:20:47.760 these what can only be thought of as bad businesses 0:20:48.240 --> 0:20:52.359 do look terrible. But as the oral argument made clear, 0:20:52.520 --> 0:20:55.800 that isn't the real issue in the case. So, yes, 0:20:55.880 --> 0:20:59.000 they're bad facts, but the question is whether there's been 0:20:59.080 --> 0:21:01.160 abrogation of tribal sovereign immunity. 0:21:01.760 --> 0:21:05.800 Explain what exactly is tribal sovereign immunity. 0:21:06.320 --> 0:21:08.800 So the basic idea here is that they're a sovereign 0:21:09.040 --> 0:21:12.200 and you can't just sue the sovereign, meaning the government, 0:21:12.320 --> 0:21:14.879 unless the government gives you permission to it, and this 0:21:15.000 --> 0:21:17.200 is true for all types of government. For a very 0:21:17.200 --> 0:21:19.399 long time, the United States government made it hard for 0:21:19.480 --> 0:21:22.520 people that were harmed by the United States that sue them, 0:21:22.560 --> 0:21:25.080 and so people would do petitions to Congress to get 0:21:25.160 --> 0:21:28.400 recourse if the government had harmed them or they'd suffered 0:21:28.440 --> 0:21:32.320 some loss, and so tribes have that sovereign immunity as well. 0:21:32.359 --> 0:21:35.879 And the question is if Congress, you know, in passing 0:21:35.960 --> 0:21:40.520 the Bankruptcy Act, did they abrogate sovereign immunity with regard 0:21:40.560 --> 0:21:43.520 to that area of law practice, right, But it is 0:21:43.600 --> 0:21:46.000 a standard part of what being a government means is 0:21:46.040 --> 0:21:47.080 you have this immunity. 0:21:47.600 --> 0:21:50.280