1 00:00:03,200 --> 00:00:07,960 Speaker 1: This is Bloomberg Law with June Brussel from Bloomberg Radio. 2 00:00:10,640 --> 00:00:13,440 Speaker 1: Everyone knows that Stephen Briar has been an exemplary justice, 3 00:00:14,280 --> 00:00:17,840 Speaker 1: fair to the parties before him, courteous to his colleagues, 4 00:00:18,400 --> 00:00:22,160 Speaker 1: careful in his reasoning. He's written landmark opinions on topics 5 00:00:22,239 --> 00:00:25,880 Speaker 1: ranging from reproductive rights to healthcare, devoni rights, to patent law, 6 00:00:26,200 --> 00:00:28,720 Speaker 1: to laws protecting our environment and the laws to protect 7 00:00:28,760 --> 00:00:32,519 Speaker 1: our religious practices. Justice Stephen Brier will step down from 8 00:00:32,520 --> 00:00:35,760 Speaker 1: the Supreme Court after twenty eight years on the bench. 9 00:00:36,680 --> 00:00:40,559 Speaker 1: Known as a scholar, a pragmatist, a consensus builder, and 10 00:00:40,640 --> 00:00:45,360 Speaker 1: an optimist with a professorial air, Briar displayed those qualities 11 00:00:45,400 --> 00:00:48,159 Speaker 1: in his remarks at the White House on Thursday. The 12 00:00:48,280 --> 00:00:51,440 Speaker 1: Justice said that in his talks with students, he reminds 13 00:00:51,479 --> 00:00:54,480 Speaker 1: them that our system of government should still be considered 14 00:00:54,520 --> 00:00:58,960 Speaker 1: an experiments. That next generation and the one after that, 15 00:01:00,040 --> 00:01:04,560 Speaker 1: my grandchildren and their children, they'll determine whether the experiment 16 00:01:04,680 --> 00:01:08,440 Speaker 1: still works. And of course I'm an optimist and I'm 17 00:01:08,520 --> 00:01:12,600 Speaker 1: pretty sure it will. Does it surprise you that that's 18 00:01:12,640 --> 00:01:16,040 Speaker 1: the thought that comes into my mind today? My guest 19 00:01:16,080 --> 00:01:21,280 Speaker 1: to discuss Justice Friar's legacy is constitutional law scholar Stephen Vladdock, 20 00:01:21,400 --> 00:01:24,920 Speaker 1: a professor at the University of Texas Law School. Justice 21 00:01:24,920 --> 00:01:28,680 Speaker 1: Briar has been adamant in the past that justices are 22 00:01:28,680 --> 00:01:32,640 Speaker 1: not political. Once they take their oath, they quote, are 23 00:01:32,720 --> 00:01:35,200 Speaker 1: loyal to the rule of law, not to the political 24 00:01:35,240 --> 00:01:39,720 Speaker 1: party that helps secure their appointment. But his retirement now 25 00:01:39,920 --> 00:01:43,560 Speaker 1: before the end of the term, giving the Democratic president 26 00:01:43,640 --> 00:01:47,640 Speaker 1: plenty of time to get another justice confirmed before possible 27 00:01:47,800 --> 00:01:51,320 Speaker 1: change in power in the Senate. Is it Briar's acknowledgement 28 00:01:51,520 --> 00:01:55,920 Speaker 1: that politics and the court are intertwined. And I think 29 00:01:56,000 --> 00:01:58,400 Speaker 1: the question is whether you can somehow walk a tight 30 00:01:58,480 --> 00:02:01,640 Speaker 1: rope between acknowledge and I think everyone has to that 31 00:02:01,760 --> 00:02:05,040 Speaker 1: the confirmation process is political, that political actors in the 32 00:02:05,040 --> 00:02:07,480 Speaker 1: form of the President and the Senate are making political 33 00:02:07,520 --> 00:02:10,839 Speaker 1: decisions about who to nominate about time in while still 34 00:02:10,919 --> 00:02:14,519 Speaker 1: believing that once the process is oak, once the justices 35 00:02:14,600 --> 00:02:17,079 Speaker 1: confirmed and takes the oath and joins the bench, that 36 00:02:17,200 --> 00:02:20,000 Speaker 1: what they're doing is somehow divorced from politics. And you know, 37 00:02:20,040 --> 00:02:22,720 Speaker 1: I think Justice Brier maybe the last of his kind 38 00:02:23,120 --> 00:02:26,760 Speaker 1: in trying to argue forcefully that yes, that's the line 39 00:02:26,800 --> 00:02:29,080 Speaker 1: that can be preserved that we can have a political, 40 00:02:29,280 --> 00:02:33,360 Speaker 1: if not partisan, confirmation process and still be judges doing 41 00:02:33,600 --> 00:02:36,760 Speaker 1: you know, judicial power as opposed to political power. Once 42 00:02:36,800 --> 00:02:38,760 Speaker 1: we've done our robes, you know, I think the question 43 00:02:38,840 --> 00:02:41,520 Speaker 1: is how many folks still believe that there are a 44 00:02:41,520 --> 00:02:44,799 Speaker 1: lot of textualists on the court now. Briar was more 45 00:02:44,919 --> 00:02:49,240 Speaker 1: of a pragmatist. Tell us about his approach to the constitution, 46 00:02:49,680 --> 00:02:51,720 Speaker 1: Justice Brier, and I'm sure part of this is a 47 00:02:51,760 --> 00:02:55,480 Speaker 1: reflection of his experience, first as a long time Senate staffer, 48 00:02:55,880 --> 00:02:59,040 Speaker 1: as an administrative law guru, as a professor, and then 49 00:02:59,160 --> 00:03:01,079 Speaker 1: June as you know, as a lower court judge. He 50 00:03:01,240 --> 00:03:03,800 Speaker 1: really thought that when it comes to the structure of government, 51 00:03:04,040 --> 00:03:06,480 Speaker 1: the best way to think about how the branches relate 52 00:03:06,560 --> 00:03:09,600 Speaker 1: to each other is, you know, a more functionalist approach, 53 00:03:09,639 --> 00:03:12,799 Speaker 1: where the branches are not hermetically sealed from each other, 54 00:03:13,320 --> 00:03:16,000 Speaker 1: where there's power sharing, where the checks and balances are 55 00:03:16,000 --> 00:03:18,919 Speaker 1: both formal and informal. And the informal part is what 56 00:03:19,000 --> 00:03:21,920 Speaker 1: often gets missed in contemporary discourse. But Briar knew of 57 00:03:22,000 --> 00:03:24,160 Speaker 1: what he spoke. He was part of it when he 58 00:03:24,280 --> 00:03:26,960 Speaker 1: was working for the Judiciary Committee, when he was involved 59 00:03:26,960 --> 00:03:29,280 Speaker 1: in the Administrative Conference the United States, and so I 60 00:03:29,280 --> 00:03:32,280 Speaker 1: think his approach to judge him was the notion that 61 00:03:32,360 --> 00:03:34,880 Speaker 1: it is not forbidden, it is not a sin to 62 00:03:35,000 --> 00:03:37,680 Speaker 1: look at the Constitution, to look at statutes, to look 63 00:03:37,680 --> 00:03:41,280 Speaker 1: at circumstances where judges are allowed to exercise a modicum 64 00:03:41,320 --> 00:03:44,880 Speaker 1: of independent judgment, and ask what actually makes the most sense, 65 00:03:44,960 --> 00:03:47,600 Speaker 1: what would be the most administrable, what would be the 66 00:03:47,600 --> 00:03:51,160 Speaker 1: most efficient, and that kind of functional as pragmotism used 67 00:03:51,160 --> 00:03:53,120 Speaker 1: to be a lot more common on the Court. And 68 00:03:53,160 --> 00:03:55,240 Speaker 1: I think it's, you know, again, another respect in which 69 00:03:55,600 --> 00:03:57,800 Speaker 1: Briar's retirement may well be the end of an era. 70 00:03:58,360 --> 00:04:01,880 Speaker 1: Justice Briar was on the bed in nearly three decades, 71 00:04:02,480 --> 00:04:05,240 Speaker 1: yet he wasn't as well known to the general public 72 00:04:05,600 --> 00:04:09,040 Speaker 1: as other justices. I don't think folks think about Justice 73 00:04:09,040 --> 00:04:11,040 Speaker 1: Brier the same way that maybe they think about like 74 00:04:11,200 --> 00:04:14,240 Speaker 1: Justice Stood to My or Justice Ginsburg, because he wasn't 75 00:04:14,240 --> 00:04:18,160 Speaker 1: as visible in cases affecting civil rights, for example. But 76 00:04:18,520 --> 00:04:20,880 Speaker 1: for all his words, for all his laws, not the 77 00:04:20,880 --> 00:04:23,240 Speaker 1: site of fact, it was Justice Brier who wrote what 78 00:04:23,520 --> 00:04:27,000 Speaker 1: until recently it was probably the most important contemporary abortion 79 00:04:27,040 --> 00:04:29,600 Speaker 1: decision in favor of women's right to choose and the 80 00:04:29,640 --> 00:04:33,120 Speaker 1: whole Women's health case. In it was Justice Brier who 81 00:04:33,200 --> 00:04:36,679 Speaker 1: was often writing with the leading decisions in affirmative action cases. 82 00:04:36,760 --> 00:04:39,200 Speaker 1: It was Justice Brier who was supported at least a 83 00:04:39,320 --> 00:04:42,240 Speaker 1: large chunk of the Court's jurisprudence that you know is 84 00:04:42,279 --> 00:04:45,760 Speaker 1: now in dissent. And so I think what complicates his legacy, 85 00:04:45,839 --> 00:04:48,720 Speaker 1: June is not him. I think we knew who he 86 00:04:48,920 --> 00:04:53,159 Speaker 1: was when President Clinton nominated him. It's how much the 87 00:04:53,200 --> 00:04:56,120 Speaker 1: Court moved around him. It's how different a court he 88 00:04:56,320 --> 00:04:59,480 Speaker 1: left than the court that he joined, and how he 89 00:04:59,520 --> 00:05:01,640 Speaker 1: looked through that lens as opposed to the lens that 90 00:05:01,680 --> 00:05:04,080 Speaker 1: we thought we'd be assessed him through twenty years ago. 91 00:05:04,800 --> 00:05:07,960 Speaker 1: Would you describe him as more of a moderate than 92 00:05:08,000 --> 00:05:11,200 Speaker 1: a liberal? These terms are so subjective. I certainly think 93 00:05:11,279 --> 00:05:14,360 Speaker 1: that for the duration of his tenure on the Court 94 00:05:14,640 --> 00:05:19,040 Speaker 1: he was probably the most centrist of the justices typically 95 00:05:19,040 --> 00:05:22,600 Speaker 1: identified as locals that of the Democratic appointees, and even 96 00:05:22,600 --> 00:05:24,600 Speaker 1: when Justice Stevenson Suder were still on the Court, that 97 00:05:24,640 --> 00:05:26,719 Speaker 1: Briar was probably the one closest to the center, and 98 00:05:26,800 --> 00:05:29,599 Speaker 1: June we have empirical evidence of that. There were high 99 00:05:29,640 --> 00:05:32,520 Speaker 1: profile cases where it was Brier who provided the key 100 00:05:32,640 --> 00:05:34,600 Speaker 1: fifth vote in favor of what we might think it 101 00:05:34,640 --> 00:05:37,120 Speaker 1: was a more conservative position the ham decase than two 102 00:05:37,120 --> 00:05:39,080 Speaker 1: thousand and four. It was Brian who provided the fifth 103 00:05:39,200 --> 00:05:41,760 Speaker 1: vote for the proposition that even American citizens could be 104 00:05:41,800 --> 00:05:44,520 Speaker 1: detained as enemy combatant. It was Justice Brier in the 105 00:05:44,640 --> 00:05:47,400 Speaker 1: series of cases in the early ten who actually traded 106 00:05:47,440 --> 00:05:51,440 Speaker 1: placed it with Justice Kennedy in some fairly significant questions 107 00:05:51,480 --> 00:05:54,280 Speaker 1: about the right to sue the government to enforce federal 108 00:05:54,320 --> 00:05:56,840 Speaker 1: claims against data officers. And so I don't think there's 109 00:05:56,880 --> 00:06:00,120 Speaker 1: any question that he was certainly the most moderate of 110 00:06:00,240 --> 00:06:02,800 Speaker 1: the justices we typically used the L word for. The 111 00:06:02,880 --> 00:06:05,400 Speaker 1: question is whether that made him a moderate in the abstract, 112 00:06:05,400 --> 00:06:07,120 Speaker 1: and the same folks is going to disagree about that. 113 00:06:07,440 --> 00:06:11,120 Speaker 1: Coming up, I'll continue this conversation with Professor Stephen Vladik 114 00:06:11,480 --> 00:06:14,279 Speaker 1: how the court will change to me that what the 115 00:06:14,360 --> 00:06:17,000 Speaker 1: judge was saying is wait a minute. Suppose what the 116 00:06:17,000 --> 00:06:20,760 Speaker 1: guy had said at the company was yes, ishka bibble, 117 00:06:21,000 --> 00:06:27,120 Speaker 1: tomato children, mob, monopoly, robocall, loving Grandma's green eyed turkeys. 118 00:06:27,720 --> 00:06:31,400 Speaker 1: These are just some of the zany, often bizarre hypotheticals. 119 00:06:31,440 --> 00:06:34,360 Speaker 1: Just as Stephen Bryer posed to lawyers in his three 120 00:06:34,400 --> 00:06:37,279 Speaker 1: decades on the bench. Imagine he made a hair prush 121 00:06:37,320 --> 00:06:41,440 Speaker 1: in the shape of a grape. Imagine King tut sitting 122 00:06:41,520 --> 00:06:44,320 Speaker 1: in front of the pyramid where all his gold is stored. 123 00:06:45,360 --> 00:06:48,680 Speaker 1: Purpose selifane on depominate signals the presence of a hot dog. 124 00:06:48,760 --> 00:06:53,560 Speaker 1: Stand a preventium from going to a Lithuanian movie. Now, 125 00:06:53,600 --> 00:06:56,920 Speaker 1: why does that sound so odd? And Brier once had 126 00:06:56,960 --> 00:07:00,479 Speaker 1: a partner in his wacky hypotheticals in the late Justice 127 00:07:00,520 --> 00:07:03,359 Speaker 1: antonin Scalia. It's like a rabbit duck, you know, is 128 00:07:03,360 --> 00:07:05,960 Speaker 1: it a rabbit or is it a done jackals a baby? 129 00:07:05,960 --> 00:07:11,280 Speaker 1: I never heard Now it turns out the only people 130 00:07:11,320 --> 00:07:15,680 Speaker 1: who use kerosene besides railroads or ice cream wagons. What's 131 00:07:15,680 --> 00:07:21,480 Speaker 1: an ice cream wagon? Anyway? I didn't understand jessice probes 132 00:07:21,640 --> 00:07:25,320 Speaker 1: question where he said the the amiable bank Cooper says, 133 00:07:25,320 --> 00:07:27,240 Speaker 1: would you please, Steven, what do you say? Would you 134 00:07:27,240 --> 00:07:31,000 Speaker 1: please step up? I'm walking through it your hair office. 135 00:07:31,080 --> 00:07:34,720 Speaker 1: What he says, my example was meant doing compass of 136 00:07:34,760 --> 00:07:38,400 Speaker 1: a polite and armed bank rob. I've been talking to 137 00:07:38,440 --> 00:07:42,640 Speaker 1: Professor Stephen Vladdock of the University of Texas Law School. Steve, 138 00:07:42,760 --> 00:07:46,240 Speaker 1: I'm going to miss Justice Bryer in your arguments. He 139 00:07:46,440 --> 00:07:52,040 Speaker 1: livened up oral arguments by presenting some crazy hypotheticals, and 140 00:07:52,200 --> 00:07:54,880 Speaker 1: you argued at the court, are those difficult to answer? 141 00:07:55,400 --> 00:07:59,560 Speaker 1: Difficult to understand? For me? It's funny just say the 142 00:07:59,560 --> 00:08:04,000 Speaker 1: court I say that, you know he's terrified generations like yeah, 143 00:08:04,040 --> 00:08:06,280 Speaker 1: I mean Jessice Briar. He has this sort of a 144 00:08:06,360 --> 00:08:09,760 Speaker 1: loose effect that I think folks may not fully appreciate it, 145 00:08:09,880 --> 00:08:13,760 Speaker 1: sometimes not entirely. How do I say inherit that I think, 146 00:08:13,800 --> 00:08:16,440 Speaker 1: you know, to some degree he's having spawned, at least 147 00:08:16,480 --> 00:08:18,600 Speaker 1: in some of these cases, with the very fact that 148 00:08:18,680 --> 00:08:20,960 Speaker 1: you know, we're struggling over these questions. When he starts 149 00:08:21,000 --> 00:08:24,840 Speaker 1: talking about James Oglethorpe's third cousin, I think able to 150 00:08:24,840 --> 00:08:26,280 Speaker 1: come up in a case a couple of terms ago. 151 00:08:26,840 --> 00:08:28,679 Speaker 1: You know, I don't think it's like a class cloud. 152 00:08:28,680 --> 00:08:31,200 Speaker 1: Then I think it's that he's just thinking out loud 153 00:08:31,480 --> 00:08:34,000 Speaker 1: and he's puzzling through these cases. You know the way 154 00:08:34,000 --> 00:08:36,000 Speaker 1: that he approaches these cases, which is with a very 155 00:08:36,000 --> 00:08:41,040 Speaker 1: prodomatic bet informed by his very areadite backgrafd. I think 156 00:08:41,240 --> 00:08:44,720 Speaker 1: arguments will be different after Jessice brier I'm not sure 157 00:08:44,760 --> 00:08:47,080 Speaker 1: how many of us will miss the you know, three 158 00:08:47,120 --> 00:08:50,440 Speaker 1: page long question. I got in trouble once because he 159 00:08:50,520 --> 00:08:54,000 Speaker 1: asked me a long, multipart question and I sort of 160 00:08:55,120 --> 00:08:56,880 Speaker 1: I probably took a little bit of liberty, but I said, 161 00:08:56,920 --> 00:08:58,840 Speaker 1: you know, if I made justice prior, I'd like to 162 00:08:58,840 --> 00:09:01,920 Speaker 1: answer that three part And he said there was one question. 163 00:09:02,640 --> 00:09:05,360 Speaker 1: It was his style, dude, And it was a style 164 00:09:05,440 --> 00:09:07,840 Speaker 1: that was in some respects cute and I think will 165 00:09:07,840 --> 00:09:11,200 Speaker 1: be probably missed if it doesn't necessarily affectives beyond just 166 00:09:11,280 --> 00:09:14,200 Speaker 1: how we prepare for arguments. You always hear that Justice 167 00:09:14,200 --> 00:09:17,920 Speaker 1: Brian was a consensus builder. President Biden even mentioned it. 168 00:09:18,120 --> 00:09:21,880 Speaker 1: How did he approach the internal dealings with other justices 169 00:09:21,920 --> 00:09:24,679 Speaker 1: on cases? From what we know, and of course there's 170 00:09:24,720 --> 00:09:27,320 Speaker 1: a lot we still don't, Justice Briar was very often 171 00:09:27,400 --> 00:09:30,000 Speaker 1: one who would try to form coalitions behind the scenes. 172 00:09:30,200 --> 00:09:32,839 Speaker 1: We know from reporting, for example by Jana Stupid and 173 00:09:32,920 --> 00:09:36,200 Speaker 1: jan Crawford Greenberg, that Briar helped afford to compromise in 174 00:09:36,240 --> 00:09:39,680 Speaker 1: the Affordable Care Act decision, where he and Justice Kagan 175 00:09:39,880 --> 00:09:42,160 Speaker 1: worked together with Chief Justice Roberts to come up with 176 00:09:42,200 --> 00:09:44,679 Speaker 1: sort of a series of decisions they could all live with. 177 00:09:44,880 --> 00:09:47,360 Speaker 1: We know that he worked in various circumstances with Justice 178 00:09:47,440 --> 00:09:51,360 Speaker 1: Kennedy before she retired, with Justice O'Connor to forge consensus, 179 00:09:51,400 --> 00:09:53,800 Speaker 1: and so I think this again goes to how much 180 00:09:53,840 --> 00:09:58,200 Speaker 1: the court moved around him that by when Justice Kavanaugh 181 00:09:58,240 --> 00:10:01,280 Speaker 1: replaced Justice Brier, I don't know who was left for 182 00:10:01,360 --> 00:10:03,199 Speaker 1: him to work with. And I'm not sure that he 183 00:10:03,360 --> 00:10:05,520 Speaker 1: thought if he still had folks on the right with 184 00:10:05,559 --> 00:10:08,040 Speaker 1: whom he could forge consents, this at least due in 185 00:10:08,080 --> 00:10:10,640 Speaker 1: any of the high profile cases where those kinds of 186 00:10:10,760 --> 00:10:13,920 Speaker 1: ideological differences tend to manifest. So he was I think 187 00:10:13,960 --> 00:10:17,040 Speaker 1: for much of his career actively involved in trying to 188 00:10:17,080 --> 00:10:20,160 Speaker 1: sort of tend the center of the court. And one 189 00:10:20,200 --> 00:10:23,520 Speaker 1: of the real legacies of his resignation and his retirement, 190 00:10:23,520 --> 00:10:25,959 Speaker 1: and one of the real sort of darker linings of 191 00:10:26,000 --> 00:10:28,280 Speaker 1: all of this, is how much that center just no 192 00:10:28,360 --> 00:10:31,920 Speaker 1: longer exists. As you mentioned, he taught administrative law before 193 00:10:32,000 --> 00:10:35,400 Speaker 1: being appointed to the First Circuit. Were there issues that 194 00:10:35,480 --> 00:10:39,800 Speaker 1: he was passionate about during his long tenure on the court? Oh? 195 00:10:39,840 --> 00:10:42,960 Speaker 1: I think Justice Brier was very passionate um in ways 196 00:10:43,000 --> 00:10:46,280 Speaker 1: that perhaps you know, not everyone would be about administrative law, 197 00:10:46,320 --> 00:10:50,280 Speaker 1: about the relationship between Congress and the executive branch about 198 00:10:50,320 --> 00:10:53,520 Speaker 1: sort of the public responsibility of the Court to maintain 199 00:10:53,920 --> 00:10:57,040 Speaker 1: and facilitate that relationship as opposed to obstructing it. But 200 00:10:57,080 --> 00:11:00,040 Speaker 1: you know, I don't think we associate him quite the 201 00:11:00,080 --> 00:11:02,679 Speaker 1: same way with any one particular line of issues or 202 00:11:02,720 --> 00:11:04,880 Speaker 1: line of cases that, for example, we think about Justice 203 00:11:04,880 --> 00:11:07,160 Speaker 1: Ginsburg or even perhaps Justice to my Or. And I 204 00:11:07,200 --> 00:11:10,439 Speaker 1: think part of that again because where he was most 205 00:11:10,520 --> 00:11:13,680 Speaker 1: effective was usually out of the limelight, was usually behind 206 00:11:13,720 --> 00:11:16,480 Speaker 1: the scene, where it wasn't that he was necessarily taken 207 00:11:16,559 --> 00:11:19,560 Speaker 1: out some very visible public position, or he was really 208 00:11:19,559 --> 00:11:22,079 Speaker 1: trying to help the Court as an institution move along. 209 00:11:22,240 --> 00:11:24,400 Speaker 1: And I think that's why as we hear from the 210 00:11:24,440 --> 00:11:27,760 Speaker 1: other justices about his forthcoming retirement, I suspect we're gonna 211 00:11:27,760 --> 00:11:29,840 Speaker 1: hear a lot about that and about how much they 212 00:11:29,960 --> 00:11:33,040 Speaker 1: enjoyed having him around and how much he aided them 213 00:11:33,040 --> 00:11:34,960 Speaker 1: in their own sort of approach to their jobs. So 214 00:11:35,240 --> 00:11:36,560 Speaker 1: that's why I think this is going to be such 215 00:11:36,559 --> 00:11:39,760 Speaker 1: an interesting process over the coming weeks and months, because 216 00:11:39,920 --> 00:11:42,200 Speaker 1: Justice Brior, whatever you might think about him, in no 217 00:11:42,320 --> 00:11:44,520 Speaker 1: respects was he ever a lightning rod. And I think 218 00:11:44,559 --> 00:11:46,440 Speaker 1: as part of why this confirmation process is such an 219 00:11:46,480 --> 00:11:49,800 Speaker 1: interesting departure from the last couple of confirmations that we've 220 00:11:49,800 --> 00:11:53,360 Speaker 1: been through. Explain how so how it will be different, 221 00:11:53,400 --> 00:11:58,520 Speaker 1: because it's been incredibly conscientious. The confirmation process has become 222 00:11:58,640 --> 00:12:01,600 Speaker 1: ugly in certain respect. Yeah, I mean, I think we 223 00:12:01,679 --> 00:12:03,920 Speaker 1: everyone had short memories. But if we harken back, you know, 224 00:12:04,000 --> 00:12:08,320 Speaker 1: twelve years, thirteen years when Justice was nominated to replace 225 00:12:08,400 --> 00:12:10,400 Speaker 1: Justice Tudor, you know, yeah, there was some of the 226 00:12:10,440 --> 00:12:14,480 Speaker 1: same ugliness about Justice to Order her background, but compared 227 00:12:14,520 --> 00:12:16,920 Speaker 1: to the confirmations that would follow it, it was actually 228 00:12:16,960 --> 00:12:18,920 Speaker 1: a pretty smooth failing. And I think part of that 229 00:12:18,960 --> 00:12:23,200 Speaker 1: was because, as with Justice Brier, everyone understood that that 230 00:12:23,280 --> 00:12:26,000 Speaker 1: particular confirmation was not going to shift to the center 231 00:12:26,040 --> 00:12:27,640 Speaker 1: of gravity on the course, It was not going to 232 00:12:27,800 --> 00:12:30,880 Speaker 1: radically change the direction of the Court, and that the 233 00:12:31,040 --> 00:12:34,520 Speaker 1: justice that Justice Brier was replaced him in. Justice Tudor 234 00:12:34,880 --> 00:12:37,559 Speaker 1: was a very significant member of the Court, but he 235 00:12:37,760 --> 00:12:41,240 Speaker 1: wasn't necessarily out on a limb all by himself where 236 00:12:41,520 --> 00:12:43,480 Speaker 1: his departure was going to open up. Some gave him 237 00:12:43,480 --> 00:12:47,120 Speaker 1: whole in the Court's jurisprudence, and if that's very much 238 00:12:47,160 --> 00:12:50,120 Speaker 1: what this field like as well, where whoever President by 239 00:12:50,120 --> 00:12:52,400 Speaker 1: the nominator, you know, I think will almost certainly sort 240 00:12:52,400 --> 00:12:55,360 Speaker 1: of be to the left of Justice brier But of 241 00:12:55,400 --> 00:12:57,960 Speaker 1: course that's not going to move the court because Justice 242 00:12:57,960 --> 00:13:01,160 Speaker 1: Briar is no longer anywhere close to the center of gravity. 243 00:13:01,360 --> 00:13:03,720 Speaker 1: And I think that's part of why, at least from 244 00:13:03,720 --> 00:13:05,840 Speaker 1: where I'm stood in I don't think this is going 245 00:13:05,880 --> 00:13:09,360 Speaker 1: to be as contentious a process as when Justice Kavanaugh 246 00:13:09,520 --> 00:13:13,080 Speaker 1: was nominated to succeed Justice Kennedy or when Justice Barrett 247 00:13:13,120 --> 00:13:15,720 Speaker 1: was nominated to succeed Justice Ginsborough, because the sticks June 248 00:13:15,720 --> 00:13:18,880 Speaker 1: are just still very different. So how would you describe 249 00:13:18,920 --> 00:13:23,520 Speaker 1: his legacy on the Court? Um? You know, I think 250 00:13:23,960 --> 00:13:26,280 Speaker 1: much much the same way that I thought of like 251 00:13:26,400 --> 00:13:30,160 Speaker 1: Justice stevens legacy when Justice steven stepped down in that 252 00:13:30,280 --> 00:13:33,160 Speaker 1: you know, Justice Stevens famously was appointed by President Ford 253 00:13:33,240 --> 00:13:36,760 Speaker 1: was a Republican, a lifelong Republican who, by the end 254 00:13:36,760 --> 00:13:39,119 Speaker 1: of his career was one of the more solidly reliably 255 00:13:39,679 --> 00:13:42,240 Speaker 1: liberal votes on the Court. And you know, Stevens, when 256 00:13:42,280 --> 00:13:44,840 Speaker 1: he was asked in he said, I didn't move so 257 00:13:44,920 --> 00:13:48,040 Speaker 1: much as the Court moved around UM. And I think, 258 00:13:48,080 --> 00:13:51,840 Speaker 1: you know, there was not Um. There's a some play 259 00:13:51,880 --> 00:13:53,640 Speaker 1: in that. I think, you know, Justice Stevens might have 260 00:13:53,640 --> 00:13:56,600 Speaker 1: been a little bit exaggerated, but he wasn't totally exaggerated. 261 00:13:57,120 --> 00:13:59,000 Speaker 1: And I really think, like when we look at Justice 262 00:13:59,040 --> 00:14:02,079 Speaker 1: Briar's life, that's gonna be a big part of the story, 263 00:14:02,160 --> 00:14:06,280 Speaker 1: like what might have been. Um, you know, if um, 264 00:14:06,440 --> 00:14:09,800 Speaker 1: Hillary Clinton wins the election and we have a democratic 265 00:14:09,880 --> 00:14:12,360 Speaker 1: majority on the Court for the first time since nineteen 266 00:14:13,760 --> 00:14:16,160 Speaker 1: Justice Brier would have been an enormously important part of 267 00:14:16,160 --> 00:14:18,800 Speaker 1: that story. Um. Right, He and Justice Ginsbrod would have 268 00:14:18,800 --> 00:14:21,600 Speaker 1: been the senior liberals on the Court, UM, and therefore 269 00:14:21,680 --> 00:14:24,280 Speaker 1: usually in control of the majority in divisive cases. So, 270 00:14:24,800 --> 00:14:27,440 Speaker 1: you know, I think his legacy is going to be defined, 271 00:14:27,480 --> 00:14:29,760 Speaker 1: at least in part by what could have been. I 272 00:14:29,760 --> 00:14:32,480 Speaker 1: think his legacy will be defined by, you know, how 273 00:14:32,600 --> 00:14:35,920 Speaker 1: much he sort of lived in the center while there 274 00:14:35,960 --> 00:14:39,040 Speaker 1: was still a center to live in, alongside Justice Kennedy, 275 00:14:39,120 --> 00:14:41,720 Speaker 1: Justice O'Connor, And I think because legacy would be defined 276 00:14:41,760 --> 00:14:45,600 Speaker 1: by sort of an age gone by where having a 277 00:14:45,640 --> 00:14:49,000 Speaker 1: pragmatic judge on the Court who thought that part of 278 00:14:49,040 --> 00:14:52,240 Speaker 1: the job was to build consensus across the perceived dial 279 00:14:52,640 --> 00:14:54,760 Speaker 1: was actually a feature and not a bug. You're going 280 00:14:54,840 --> 00:14:58,120 Speaker 1: to have Briar, who's been on the Court for almost 281 00:14:58,160 --> 00:15:02,160 Speaker 1: thirty years, being replaced by someone new and a black woman. 282 00:15:02,840 --> 00:15:06,120 Speaker 1: How does that change the dynamic on the court and 283 00:15:06,800 --> 00:15:09,920 Speaker 1: among the liberals on the court? Three women? Now the 284 00:15:09,960 --> 00:15:12,800 Speaker 1: most significant thing it does, is it really I think 285 00:15:12,920 --> 00:15:15,280 Speaker 1: elevates Justice Sodam I or that much further. But she 286 00:15:15,360 --> 00:15:18,280 Speaker 1: now becomes not just perhaps the rhetorical leader of the 287 00:15:18,320 --> 00:15:21,080 Speaker 1: liberal wing, but the senior member of the liberal wins. 288 00:15:21,200 --> 00:15:24,200 Speaker 1: So when it comes to parcelong outdiscent, for example, in 289 00:15:24,200 --> 00:15:26,080 Speaker 1: the high profile cases, you know that will fall to 290 00:15:26,120 --> 00:15:28,720 Speaker 1: her as opposed to Justice Briar. But I also think 291 00:15:29,120 --> 00:15:32,000 Speaker 1: that the other way it's going to change the dynamics is, 292 00:15:32,200 --> 00:15:35,280 Speaker 1: you know, I think it is going to reflect yet 293 00:15:35,280 --> 00:15:38,760 Speaker 1: a further generational change. One has to think that President 294 00:15:38,760 --> 00:15:41,200 Speaker 1: Biden is going to appoint someone who is at the 295 00:15:41,240 --> 00:15:43,720 Speaker 1: oldest in their early fifties. And so if that person 296 00:15:43,760 --> 00:15:46,160 Speaker 1: serves for as long as Justice Briar serves, I mean 297 00:15:46,160 --> 00:15:48,160 Speaker 1: the court is going to change again while they're on 298 00:15:48,200 --> 00:15:51,080 Speaker 1: the court. So I think the internal dynamics will be 299 00:15:51,120 --> 00:15:53,080 Speaker 1: harder for us to see. I think they will be 300 00:15:53,160 --> 00:15:57,320 Speaker 1: most heavily felt among the three Democratic appointees and how 301 00:15:57,480 --> 00:16:01,160 Speaker 1: they allocate their responsibility. Is there a June that the 302 00:16:01,360 --> 00:16:06,080 Speaker 1: justice who replaces Justice prior might find her own mechanisms, 303 00:16:06,080 --> 00:16:09,280 Speaker 1: her own ways of building consensus with some of her colleagues. 304 00:16:09,320 --> 00:16:12,240 Speaker 1: On the other side, is a relationship between the new 305 00:16:12,280 --> 00:16:15,440 Speaker 1: justice and justice corsets, for example, on criminal cases a 306 00:16:15,520 --> 00:16:18,000 Speaker 1: possibility we'll have to see. But again, I mean, I 307 00:16:18,000 --> 00:16:21,600 Speaker 1: think what really makes this whole process feel so different 308 00:16:21,760 --> 00:16:23,800 Speaker 1: from the last couple of times we've been here is 309 00:16:23,840 --> 00:16:25,880 Speaker 1: that these differences in the short term are going to 310 00:16:26,040 --> 00:16:29,440 Speaker 1: just pale in comparison to the short term differences we 311 00:16:29,480 --> 00:16:32,640 Speaker 1: saw between Kennedy and Kavanaugh, Guinsburg and Barrett. Of the 312 00:16:32,680 --> 00:16:35,920 Speaker 1: list of replacements, does one stand out of the list 313 00:16:35,960 --> 00:16:39,520 Speaker 1: of replacements, does one stand out? I don't know about one, June. 314 00:16:39,560 --> 00:16:41,480 Speaker 1: I think there are two. From where I'm sit in 315 00:16:41,880 --> 00:16:47,000 Speaker 1: Katangi Brown Jackson and Leandre Krueger are such compelling candidates 316 00:16:47,000 --> 00:16:49,600 Speaker 1: in different ways and low though I am to bet 317 00:16:49,600 --> 00:16:52,920 Speaker 1: on any particular candidates in this race, I would be 318 00:16:53,000 --> 00:16:54,560 Speaker 1: very surprised if it wasn't one of those two. They're 319 00:16:54,560 --> 00:16:58,600 Speaker 1: both fantastically qualified, They're both very smart, they're both highly 320 00:16:58,640 --> 00:17:01,480 Speaker 1: regarded June. They had different backgrounds, They have different experience 321 00:17:01,560 --> 00:17:04,200 Speaker 1: that Catani Brown Jackson was a district judge before she's 322 00:17:04,200 --> 00:17:07,400 Speaker 1: an apelogige. She has trial experience. Leando Krueger before she's 323 00:17:07,440 --> 00:17:09,639 Speaker 1: a California Supreme Court justice was a government lawyer. She 324 00:17:09,760 --> 00:17:12,320 Speaker 1: worked in the executive press for the absol Regal Council. 325 00:17:12,440 --> 00:17:16,920 Speaker 1: So I think there are hantilizing opportunities with both of them, 326 00:17:17,320 --> 00:17:19,480 Speaker 1: and I think it's going to be a good problem 327 00:17:19,560 --> 00:17:21,840 Speaker 1: for President Biden to have and trying to pick between 328 00:17:21,880 --> 00:17:24,440 Speaker 1: them and the other names for being bandied about. Thanks 329 00:17:24,480 --> 00:17:28,040 Speaker 1: so much, Steve, I always appreciate your insights. That's Professor 330 00:17:28,040 --> 00:17:33,520 Speaker 1: Stephen Vladdock of the University of Texas Law School. The 331 00:17:33,600 --> 00:17:38,040 Speaker 1: Supreme Court is passing on Oklahoma's aggressive attempt to topple 332 00:17:38,160 --> 00:17:43,920 Speaker 1: the president on American Indian reservations and criminal justice established 333 00:17:43,920 --> 00:17:47,119 Speaker 1: in the landmark case of mcgt va Oklahoma by a 334 00:17:47,160 --> 00:17:50,280 Speaker 1: vote of five to four. The justices will not review 335 00:17:50,400 --> 00:17:53,879 Speaker 1: the precedent established in McGirt, but will look at how 336 00:17:53,920 --> 00:17:58,000 Speaker 1: the ruling applies to state prosecutions of non Indians. It 337 00:17:58,040 --> 00:18:01,240 Speaker 1: will be one of the last argued case of the term. 338 00:18:01,280 --> 00:18:04,679 Speaker 1: Both Indian tribes and the state of Oklahoma applauded the 339 00:18:04,680 --> 00:18:08,080 Speaker 1: court's order On Friday. Joree me Is Bloomberg Law reporter 340 00:18:08,240 --> 00:18:13,000 Speaker 1: Jordan Reuben. For those who don't remember McGirt, tell us 341 00:18:13,080 --> 00:18:17,119 Speaker 1: what that landmark decision of mcg the Oklahoma stands for. 342 00:18:18,200 --> 00:18:22,800 Speaker 1: So mcgert for Oklahoma stands for the proposition that the 343 00:18:22,880 --> 00:18:26,399 Speaker 1: Skokie Creek Reservation, which is the reservation and issue in 344 00:18:26,440 --> 00:18:30,080 Speaker 1: that case, had never been disbanded by Congress. That reservations 345 00:18:30,119 --> 00:18:33,560 Speaker 1: still stands. It still exists, and by implications, so do 346 00:18:34,119 --> 00:18:38,719 Speaker 1: several other reservations in the eastern half of Oklahoma. And 347 00:18:38,720 --> 00:18:42,920 Speaker 1: that arose in a criminal case by a defendant who 348 00:18:43,000 --> 00:18:46,280 Speaker 1: was challenging his conviction. He was Native American. He said 349 00:18:46,320 --> 00:18:50,480 Speaker 1: the state of Oklahoma didn't have jurisdiction to charge him 350 00:18:50,520 --> 00:18:53,080 Speaker 1: for a crime that took place on the reservation. And 351 00:18:53,119 --> 00:18:56,160 Speaker 1: so to answer the question, the justices had to take 352 00:18:56,160 --> 00:18:59,400 Speaker 1: a look at whether that reservation still in fact existed, 353 00:18:59,480 --> 00:19:02,640 Speaker 1: which made the court go back and look at treaties 354 00:19:02,920 --> 00:19:05,800 Speaker 1: and interpret those. And so the court said that the 355 00:19:05,840 --> 00:19:09,560 Speaker 1: reservations do still in fact exist, and so that's what 356 00:19:09,600 --> 00:19:13,960 Speaker 1: wounds up having this transformative effect on criminal justice and 357 00:19:14,000 --> 00:19:18,120 Speaker 1: potentially some other areas of the law in Oklahoma. Remind 358 00:19:18,240 --> 00:19:21,520 Speaker 1: us about the reaction to the ruling from the State 359 00:19:21,520 --> 00:19:25,359 Speaker 1: of Oklahoma and the Indian tribes in Oklahoma. Sure so, 360 00:19:25,480 --> 00:19:28,720 Speaker 1: from the state's perspective, and this was true. Heading into 361 00:19:29,040 --> 00:19:31,240 Speaker 1: the decision, the state was warning that there would be 362 00:19:31,440 --> 00:19:35,040 Speaker 1: chaos breaking out if the state didn't have jurisdictions to 363 00:19:35,160 --> 00:19:38,280 Speaker 1: prosecute certain crimes, and that jurisdiction would then fall to 364 00:19:38,840 --> 00:19:42,400 Speaker 1: tribes and the federal government, which the state said wasn't 365 00:19:42,400 --> 00:19:44,600 Speaker 1: equipped at all to handle those things. That's what the 366 00:19:44,640 --> 00:19:46,960 Speaker 1: state was saying ahead of the argument, And so then 367 00:19:47,040 --> 00:19:51,080 Speaker 1: after the state lost the decision, it essentially reiterated those 368 00:19:51,080 --> 00:19:54,520 Speaker 1: state arguments, saying, telling the court, Hey, all these things 369 00:19:54,560 --> 00:19:56,320 Speaker 1: that we warned you about that we're going to happen, 370 00:19:56,640 --> 00:19:59,080 Speaker 1: those in fact did happen, and now we want you 371 00:19:59,240 --> 00:20:03,840 Speaker 1: to fix it by reversing the decision. The tribes those 372 00:20:03,840 --> 00:20:07,720 Speaker 1: say that that's not true, that that narrative of chaos 373 00:20:07,840 --> 00:20:10,320 Speaker 1: is not what's playing out in Oklahoma, and that to 374 00:20:10,359 --> 00:20:13,800 Speaker 1: the extent there is this chaos, it's because of the 375 00:20:13,880 --> 00:20:17,840 Speaker 1: state challenging them a gert decision itself, and not cooperating. 376 00:20:17,880 --> 00:20:20,439 Speaker 1: So there's a circular effect to all of this. But 377 00:20:20,520 --> 00:20:24,680 Speaker 1: the state and the tribes really aren't totally opposite ends 378 00:20:24,800 --> 00:20:27,240 Speaker 1: of the spectrum. And when I say the state and 379 00:20:27,280 --> 00:20:30,480 Speaker 1: the tribes, talking about the governor Stitch, who has been 380 00:20:30,560 --> 00:20:34,320 Speaker 1: challenging this, there has been cooperation between the tribes and 381 00:20:34,840 --> 00:20:38,840 Speaker 1: different state officials on the lower end, but at the 382 00:20:38,920 --> 00:20:41,280 Speaker 1: higher end of it from the governor's office and the tribes, 383 00:20:41,320 --> 00:20:45,080 Speaker 1: it's really been a serious battle there. So the State 384 00:20:45,160 --> 00:20:49,720 Speaker 1: of Oklahoma asked the Supreme Court to reverse a decision 385 00:20:49,760 --> 00:20:54,120 Speaker 1: it just handed down in that that's set a precedent 386 00:20:54,200 --> 00:20:57,679 Speaker 1: for American Indian reservations. That's right, and so it's a 387 00:20:57,680 --> 00:21:01,639 Speaker 1: pretty bold request. We hadn't really seen anything quite like this. 388 00:21:01,840 --> 00:21:06,280 Speaker 1: It's obviously not unprecedented for the Court to overturn its precedent, 389 00:21:06,400 --> 00:21:10,399 Speaker 1: but this request was unusual for how quickly it was 390 00:21:10,440 --> 00:21:13,280 Speaker 1: being made, and being made obviously because of a change 391 00:21:13,280 --> 00:21:16,639 Speaker 1: in composition on the court, with Justice Ginsburg having been 392 00:21:16,920 --> 00:21:19,760 Speaker 1: in the five four majority against the state and then 393 00:21:19,800 --> 00:21:23,640 Speaker 1: her dying and being replaced by Ammy Coney Barrett. Were 394 00:21:23,680 --> 00:21:26,920 Speaker 1: there more than thirty petitions to the court, There were, 395 00:21:26,960 --> 00:21:29,119 Speaker 1: and they were all raising this same issue, and so 396 00:21:29,200 --> 00:21:32,320 Speaker 1: the state was raising this question of attempting to try 397 00:21:32,320 --> 00:21:36,199 Speaker 1: and overturn the decision in as you said, over thirty 398 00:21:36,240 --> 00:21:39,560 Speaker 1: petitions to the court, most of which were denied today 399 00:21:39,640 --> 00:21:44,000 Speaker 1: on Monday, January denied in terms of the question of 400 00:21:44,040 --> 00:21:48,040 Speaker 1: whether to overturned the precedent, But the Court did grant 401 00:21:48,080 --> 00:21:52,679 Speaker 1: review on Friday of a related question that doesn't involve 402 00:21:52,800 --> 00:21:56,560 Speaker 1: straight up overturning the decision. So explain what the court 403 00:21:56,800 --> 00:21:59,439 Speaker 1: says it will review. So the court is going to 404 00:21:59,520 --> 00:22:03,840 Speaker 1: review question of how mcgert applies to non Indians, the 405 00:22:03,880 --> 00:22:09,160 Speaker 1: state's power over prosecuting non Indians. Mcgert involved in Indian defendant, 406 00:22:09,240 --> 00:22:12,360 Speaker 1: But in the state's eyes, that left open the question 407 00:22:12,480 --> 00:22:15,760 Speaker 1: of whether a state can prosecute non Indians who commit 408 00:22:15,920 --> 00:22:19,920 Speaker 1: crimes against Indians in Indian country, which is the legal 409 00:22:20,040 --> 00:22:25,480 Speaker 1: term referred to for the reservation. And so it's essentially 410 00:22:25,560 --> 00:22:29,720 Speaker 1: still a question about state power and state authority, which 411 00:22:29,800 --> 00:22:33,679 Speaker 1: was what's happening against the backdrop of the broader mcgert issue, 412 00:22:33,760 --> 00:22:37,000 Speaker 1: but now in a narrower way, not taking on this 413 00:22:37,200 --> 00:22:40,679 Speaker 1: broader question of whether to straight up overturn the decision 414 00:22:40,720 --> 00:22:43,920 Speaker 1: that the court just issued. So Jordan's is there any 415 00:22:43,920 --> 00:22:47,960 Speaker 1: way the Justices could cut back on the part of 416 00:22:48,000 --> 00:22:52,879 Speaker 1: the ruling they say they're not reviewing. They certainly could, 417 00:22:53,240 --> 00:22:55,680 Speaker 1: But I think that no matter what the court winds 418 00:22:55,760 --> 00:22:58,639 Speaker 1: up doing, whether it's seen as cutting back or expanding, 419 00:22:58,720 --> 00:23:01,719 Speaker 1: is going to depends on from what vantage point you're 420 00:23:01,800 --> 00:23:07,240 Speaker 1: viewing the case to begin with. Because, certainly, from the 421 00:23:07,320 --> 00:23:12,360 Speaker 1: tribes perspective, that could be seen as cutting back on mcgert. 422 00:23:12,440 --> 00:23:17,920 Speaker 1: From the state's perspective, not applying the states authorities and 423 00:23:17,960 --> 00:23:22,040 Speaker 1: non Indians would be seen as an impermissible expansion of mcgart. 424 00:23:22,119 --> 00:23:23,840 Speaker 1: So we see this in other cases to where whether 425 00:23:23,880 --> 00:23:27,639 Speaker 1: you're talking about expanding or narrowing can depend on where 426 00:23:27,680 --> 00:23:31,320 Speaker 1: you're sitting where you're viewing this from. But certainly the 427 00:23:31,359 --> 00:23:35,320 Speaker 1: court can wind up in some ways narrowing the effect 428 00:23:35,480 --> 00:23:40,480 Speaker 1: of the mcgret decision. And both sides applauded the Supreme 429 00:23:40,520 --> 00:23:46,199 Speaker 1: Court's order to take this right. So when Oklahoma was 430 00:23:46,240 --> 00:23:50,360 Speaker 1: petitioning the court asking the Court to overturn the mcgret decision, 431 00:23:50,400 --> 00:23:54,520 Speaker 1: you had tribes affected by the ruling filing amicus briefs 432 00:23:54,520 --> 00:23:57,440 Speaker 1: telling the Court not to reverse this decision, which the 433 00:23:57,480 --> 00:24:01,600 Speaker 1: tribes had really hailed as a import landmark ruling, and 434 00:24:01,640 --> 00:24:05,119 Speaker 1: so then obviously when the court denied review of that 435 00:24:05,160 --> 00:24:08,439 Speaker 1: broader question, the tribes applauded that. And I thought it 436 00:24:08,480 --> 00:24:11,640 Speaker 1: was interesting that in his statement on the court granting 437 00:24:11,680 --> 00:24:15,879 Speaker 1: review of just an narrower question, Governor Stitt also applauded 438 00:24:16,000 --> 00:24:20,480 Speaker 1: the ruling the decision to take on this narrower question 439 00:24:20,520 --> 00:24:23,960 Speaker 1: as well, without really acknowledging the fact that the state 440 00:24:24,040 --> 00:24:28,200 Speaker 1: had lost its attempt to take on the broader issue. 441 00:24:29,080 --> 00:24:31,800 Speaker 1: It takes four votes to grant review of a case, 442 00:24:31,840 --> 00:24:34,240 Speaker 1: and does it seem as if it wasn't Gorsage and 443 00:24:34,320 --> 00:24:37,520 Speaker 1: the three liberals who were in the majority of McGirt 444 00:24:37,600 --> 00:24:42,560 Speaker 1: who would have authorized this. It seems like it's the conservatives, right, 445 00:24:42,680 --> 00:24:44,920 Speaker 1: those might have been the least likely, I would say, 446 00:24:45,080 --> 00:24:48,640 Speaker 1: out of those four who are left from the majority decision. 447 00:24:48,960 --> 00:24:51,600 Speaker 1: Of course, that even though he authored mcg could potentially 448 00:24:51,640 --> 00:24:54,880 Speaker 1: have still been the most likely out of those four. 449 00:24:54,920 --> 00:24:57,600 Speaker 1: Two have granted review of this question because in some 450 00:24:57,680 --> 00:25:02,040 Speaker 1: ways it is an issue that does in directly implicate 451 00:25:02,119 --> 00:25:05,199 Speaker 1: the broader interests of mcgred, although some people think that 452 00:25:05,280 --> 00:25:08,159 Speaker 1: it might, but it's certainly possible that more than for 453 00:25:08,400 --> 00:25:11,400 Speaker 1: Justice were willing to take on this issue. But as 454 00:25:11,440 --> 00:25:13,880 Speaker 1: you said, the fact that the Court keeps this sort 455 00:25:13,920 --> 00:25:16,800 Speaker 1: of vote secret, we just don't know, at least for now. 456 00:25:17,040 --> 00:25:19,800 Speaker 1: And the only difference in the composition of the court 457 00:25:19,880 --> 00:25:24,040 Speaker 1: is that Emmy Coney Barrett has replaced Justice Ruth Bader Ginsburg. 458 00:25:24,600 --> 00:25:29,120 Speaker 1: That's right, and not in their legal filings. But state officials, 459 00:25:29,160 --> 00:25:32,359 Speaker 1: at the same time that they were attempting to reverse 460 00:25:32,400 --> 00:25:35,719 Speaker 1: the decision made public comments directly saying that that they 461 00:25:35,760 --> 00:25:38,920 Speaker 1: hope that the change in composition of the court would 462 00:25:38,920 --> 00:25:42,320 Speaker 1: help the Court to change course in the state's favor. 463 00:25:42,400 --> 00:25:45,440 Speaker 1: So that wasn't the direct legal argument that the state's 464 00:25:45,640 --> 00:25:49,480 Speaker 1: lawyers were making, but that was obviously the effect of 465 00:25:49,480 --> 00:25:52,160 Speaker 1: what they were saying. And on top of that, the 466 00:25:52,240 --> 00:25:56,480 Speaker 1: governor directly made that statement in at least one interview 467 00:25:56,560 --> 00:25:59,200 Speaker 1: that I came across. So I remember when we talked 468 00:25:59,200 --> 00:26:03,600 Speaker 1: about this earlier, when Oklahoma was asking the Supreme Court 469 00:26:03,600 --> 00:26:06,320 Speaker 1: to overturn it, it seemed like it would be, you know, 470 00:26:06,480 --> 00:26:09,480 Speaker 1: odd for the Court to grant reviews so soon afterwards. 471 00:26:09,520 --> 00:26:12,399 Speaker 1: But did this come as a surprise that the Court 472 00:26:12,480 --> 00:26:18,000 Speaker 1: granted this limited review. Not to me, because before the 473 00:26:18,040 --> 00:26:23,800 Speaker 1: state injected this attempt after Justice Ginsburgh died too overturn 474 00:26:23,880 --> 00:26:26,919 Speaker 1: mcger This was an issue that the state was pushing 475 00:26:26,960 --> 00:26:31,480 Speaker 1: for even before then, and so at that point I 476 00:26:31,560 --> 00:26:33,680 Speaker 1: thought that there was going to be a decent chance 477 00:26:33,720 --> 00:26:36,040 Speaker 1: that the state was going to take on this issue 478 00:26:36,119 --> 00:26:42,119 Speaker 1: of the states jurisdiction after mcgart once they also requested 479 00:26:42,160 --> 00:26:44,399 Speaker 1: to straight up over turn mcgert. I would have been 480 00:26:44,520 --> 00:26:46,760 Speaker 1: very surprised if the Court had even granted review of 481 00:26:46,800 --> 00:26:49,480 Speaker 1: that question. But as to the question the Court did 482 00:26:49,520 --> 00:26:52,800 Speaker 1: grant review on, I wouldn't say that that's too surprising. 483 00:26:53,560 --> 00:26:56,880 Speaker 1: So the claims that Oklahoma has made, you know, sort 484 00:26:56,920 --> 00:27:00,520 Speaker 1: of the chaos in Oklahoma after the decision, has any 485 00:27:00,520 --> 00:27:02,400 Speaker 1: of that been shown to be true or is that 486 00:27:02,440 --> 00:27:07,440 Speaker 1: just exaggeration? So I think it's probably both that there 487 00:27:07,440 --> 00:27:09,159 Speaker 1: are some things that are true and there are some 488 00:27:09,200 --> 00:27:13,080 Speaker 1: things that are being exaggerated. When you whenever you have 489 00:27:13,119 --> 00:27:17,760 Speaker 1: a decision that's affecting criminal defendant's rights, there's no doubt 490 00:27:17,800 --> 00:27:20,080 Speaker 1: there are always going to be cases that either wind 491 00:27:20,160 --> 00:27:24,080 Speaker 1: up getting prosecuted differently or don't wind up getting prosecuted 492 00:27:24,119 --> 00:27:26,560 Speaker 1: at all. That's a fact of life. That's what happens 493 00:27:26,560 --> 00:27:30,200 Speaker 1: when the court applies the law sometimes. Now, I don't 494 00:27:30,240 --> 00:27:33,040 Speaker 1: think that it's the case that there is this chaos 495 00:27:33,160 --> 00:27:36,520 Speaker 1: to the extent that the state is painting. It's certainly 496 00:27:36,520 --> 00:27:39,720 Speaker 1: not from talking to people who are working with the 497 00:27:39,800 --> 00:27:43,080 Speaker 1: tribes on the ground there and reporting that I've done. 498 00:27:43,119 --> 00:27:45,040 Speaker 1: But that's certainly not to say that there haven't been 499 00:27:45,320 --> 00:27:49,040 Speaker 1: real effects from Mcgert. I think everybody agrees about that. 500 00:27:49,320 --> 00:27:52,359 Speaker 1: It's more of just a question of what does the 501 00:27:52,440 --> 00:27:54,920 Speaker 1: law say. And in Mcgert it said that the state 502 00:27:54,920 --> 00:27:57,879 Speaker 1: doesn't have this jurisdiction, and now there's the question of 503 00:27:57,880 --> 00:28:01,840 Speaker 1: whether the state has this now or form of jurisdiction. 504 00:28:01,880 --> 00:28:04,800 Speaker 1: And so these questions about the effect of the ruling 505 00:28:04,840 --> 00:28:08,280 Speaker 1: are really almost besides the point. Obviously they're super important 506 00:28:08,680 --> 00:28:11,560 Speaker 1: on the ground that as to the specific legal question, 507 00:28:11,640 --> 00:28:15,520 Speaker 1: these are questions about statutory interpretation and treaties. It's just 508 00:28:15,600 --> 00:28:18,439 Speaker 1: that these other issues are getting brought up in the 509 00:28:18,480 --> 00:28:21,480 Speaker 1: background and really trying to be used to press the 510 00:28:21,520 --> 00:28:25,800 Speaker 1: justice to rule a certain way. And um, when will 511 00:28:25,840 --> 00:28:27,800 Speaker 1: this be heard? Will it be heard this term or 512 00:28:27,920 --> 00:28:31,639 Speaker 1: next term? It will be heard this term? And that's 513 00:28:31,680 --> 00:28:34,800 Speaker 1: actually a more interesting question than usual about when a 514 00:28:34,840 --> 00:28:37,159 Speaker 1: case is going to be heard, because it looks like 515 00:28:37,200 --> 00:28:39,800 Speaker 1: this is going to be the last case that kind 516 00:28:39,840 --> 00:28:41,880 Speaker 1: of squeaked in right at the last minute to be 517 00:28:41,920 --> 00:28:45,840 Speaker 1: heard this term, because this past Friday was sort of 518 00:28:45,880 --> 00:28:48,920 Speaker 1: the unofficial last day that the court could have granted 519 00:28:48,960 --> 00:28:51,720 Speaker 1: a new case to be heard this term, and usually 520 00:28:51,720 --> 00:28:53,680 Speaker 1: when a court is granting review of a case, it 521 00:28:53,800 --> 00:28:56,480 Speaker 1: won't say exactly when it's going to be heard, but 522 00:28:56,720 --> 00:29:00,400 Speaker 1: to put aside any doubt in the courts order, it 523 00:29:00,520 --> 00:29:02,840 Speaker 1: said this case is going to be argued in the 524 00:29:02,920 --> 00:29:05,719 Speaker 1: last session in April, and put the case even on 525 00:29:05,760 --> 00:29:10,000 Speaker 1: a somewhat expedited briefing schedule, And so we know that 526 00:29:10,080 --> 00:29:12,440 Speaker 1: the case is going to be heard this term according 527 00:29:12,480 --> 00:29:14,440 Speaker 1: to the court, and it might well be the last 528 00:29:14,520 --> 00:29:18,240 Speaker 1: case granted to be heard this term. Thanks so much, Jordan. 529 00:29:18,320 --> 00:29:22,800 Speaker 1: As always, that's Bloomberg Law reporter Jordan Ruben, and that's 530 00:29:22,840 --> 00:29:25,440 Speaker 1: it for this edition of the Bloomberg Law Show. Remember 531 00:29:25,480 --> 00:29:27,560 Speaker 1: you can always get the latest legal news on our 532 00:29:27,600 --> 00:29:31,719 Speaker 1: Bloomberg Law Podcast. You can find them on Apple Podcasts, Spotify, 533 00:29:31,920 --> 00:29:36,960 Speaker 1: and at www dot Bloomberg dot com, Slash podcast Slash Law, 534 00:29:37,360 --> 00:29:39,520 Speaker 1: and remember to tune in to the Bloomberg Law show 535 00:29:39,640 --> 00:29:43,120 Speaker 1: every week night at ten BM Wall Street Time. I'm 536 00:29:43,200 --> 00:29:45,680 Speaker 1: June Grosso and you're listening to Bloomberg