Speaker 1: This is Bloomberg Law with June Brussel from Bloomberg Radio.
Speaker 1: Everyone knows that Stephen Briar has been an exemplary justice,
Speaker 1: fair to the parties before him, courteous to his colleagues,
Speaker 1: careful in his reasoning. He's written landmark opinions on topics
Speaker 1: ranging from reproductive rights to healthcare, devoni rights, to patent law,
Speaker 1: to laws protecting our environment and the laws to protect
Speaker 1: our religious practices. Justice Stephen Brier will step down from
Speaker 1: the Supreme Court after twenty eight years on the bench.
Speaker 1: Known as a scholar, a pragmatist, a consensus builder, and
Speaker 1: an optimist with a professorial air, Briar displayed those qualities
Speaker 1: in his remarks at the White House on Thursday. The
Speaker 1: Justice said that in his talks with students, he reminds
Speaker 1: them that our system of government should still be considered
Speaker 1: an experiments. That next generation and the one after that,
Speaker 1: my grandchildren and their children, they'll determine whether the experiment
Speaker 1: still works. And of course I'm an optimist and I'm
Speaker 1: pretty sure it will. Does it surprise you that that's
Speaker 1: the thought that comes into my mind today? My guest
Speaker 1: to discuss Justice Friar's legacy is constitutional law scholar Stephen Vladdock,
Speaker 1: a professor at the University of Texas Law School. Justice
Speaker 1: Briar has been adamant in the past that justices are
Speaker 1: not political. Once they take their oath, they quote, are
Speaker 1: loyal to the rule of law, not to the political
Speaker 1: party that helps secure their appointment. But his retirement now
Speaker 1: before the end of the term, giving the Democratic president
Speaker 1: plenty of time to get another justice confirmed before possible
Speaker 1: change in power in the Senate. Is it Briar's acknowledgement
Speaker 1: that politics and the court are intertwined. And I think
Speaker 1: the question is whether you can somehow walk a tight
Speaker 1: rope between acknowledge and I think everyone has to that
Speaker 1: the confirmation process is political, that political actors in the
Speaker 1: form of the President and the Senate are making political
Speaker 1: decisions about who to nominate about time in while still
Speaker 1: believing that once the process is oak, once the justices
Speaker 1: confirmed and takes the oath and joins the bench, that
Speaker 1: what they're doing is somehow divorced from politics. And you know,
Speaker 1: I think Justice Brier maybe the last of his kind
Speaker 1: in trying to argue forcefully that yes, that's the line
Speaker 1: that can be preserved that we can have a political,
Speaker 1: if not partisan, confirmation process and still be judges doing
Speaker 1: you know, judicial power as opposed to political power. Once
Speaker 1: we've done our robes, you know, I think the question
Speaker 1: is how many folks still believe that there are a
Speaker 1: lot of textualists on the court now. Briar was more
Speaker 1: of a pragmatist. Tell us about his approach to the constitution,
Speaker 1: Justice Brier, and I'm sure part of this is a
Speaker 1: reflection of his experience, first as a long time Senate staffer,
Speaker 1: as an administrative law guru, as a professor, and then
Speaker 1: June as you know, as a lower court judge. He
Speaker 1: really thought that when it comes to the structure of government,
Speaker 1: the best way to think about how the branches relate
Speaker 1: to each other is, you know, a more functionalist approach,
Speaker 1: where the branches are not hermetically sealed from each other,
Speaker 1: where there's power sharing, where the checks and balances are
Speaker 1: both formal and informal. And the informal part is what
Speaker 1: often gets missed in contemporary discourse. But Briar knew of
Speaker 1: what he spoke. He was part of it when he
Speaker 1: was working for the Judiciary Committee, when he was involved
Speaker 1: in the Administrative Conference the United States, and so I
Speaker 1: think his approach to judge him was the notion that
Speaker 1: it is not forbidden, it is not a sin to
Speaker 1: look at the Constitution, to look at statutes, to look
Speaker 1: at circumstances where judges are allowed to exercise a modicum
Speaker 1: of independent judgment, and ask what actually makes the most sense,
Speaker 1: what would be the most administrable, what would be the
Speaker 1: most efficient, and that kind of functional as pragmotism used
Speaker 1: to be a lot more common on the Court. And
Speaker 1: I think it's, you know, again, another respect in which
Speaker 1: Briar's retirement may well be the end of an era.
Speaker 1: Justice Briar was on the bed in nearly three decades,
Speaker 1: yet he wasn't as well known to the general public
Speaker 1: as other justices. I don't think folks think about Justice
Speaker 1: Brier the same way that maybe they think about like
Speaker 1: Justice Stood to My or Justice Ginsburg, because he wasn't
Speaker 1: as visible in cases affecting civil rights, for example. But
Speaker 1: for all his words, for all his laws, not the
Speaker 1: site of fact, it was Justice Brier who wrote what
Speaker 1: until recently it was probably the most important contemporary abortion
Speaker 1: decision in favor of women's right to choose and the
Speaker 1: whole Women's health case. In it was Justice Brier who
Speaker 1: was often writing with the leading decisions in affirmative action cases.
Speaker 1: It was Justice Brier who was supported at least a
Speaker 1: large chunk of the Court's jurisprudence that you know is
Speaker 1: now in dissent. And so I think what complicates his legacy,
Speaker 1: June is not him. I think we knew who he
Speaker 1: was when President Clinton nominated him. It's how much the
Speaker 1: Court moved around him. It's how different a court he
Speaker 1: left than the court that he joined, and how he
Speaker 1: looked through that lens as opposed to the lens that
Speaker 1: we thought we'd be assessed him through twenty years ago.
Speaker 1: Would you describe him as more of a moderate than
Speaker 1: a liberal? These terms are so subjective. I certainly think
Speaker 1: that for the duration of his tenure on the Court
Speaker 1: he was probably the most centrist of the justices typically
Speaker 1: identified as locals that of the Democratic appointees, and even
Speaker 1: when Justice Stevenson Suder were still on the Court, that
Speaker 1: Briar was probably the one closest to the center, and
Speaker 1: June we have empirical evidence of that. There were high
Speaker 1: profile cases where it was Brier who provided the key
Speaker 1: fifth vote in favor of what we might think it
Speaker 1: was a more conservative position the ham decase than two
Speaker 1: thousand and four. It was Brian who provided the fifth
Speaker 1: vote for the proposition that even American citizens could be
Speaker 1: detained as enemy combatant. It was Justice Brier in the
Speaker 1: series of cases in the early ten who actually traded
Speaker 1: placed it with Justice Kennedy in some fairly significant questions
Speaker 1: about the right to sue the government to enforce federal
Speaker 1: claims against data officers. And so I don't think there's
Speaker 1: any question that he was certainly the most moderate of
Speaker 1: the justices we typically used the L word for. The
Speaker 1: question is whether that made him a moderate in the abstract,
Speaker 1: and the same folks is going to disagree about that.
Speaker 1: Coming up, I'll continue this conversation with Professor Stephen Vladik
Speaker 1: how the court will change to me that what the
Speaker 1: judge was saying is wait a minute. Suppose what the
Speaker 1: guy had said at the company was yes, ishka bibble,
Speaker 1: tomato children, mob, monopoly, robocall, loving Grandma's green eyed turkeys.
Speaker 1: These are just some of the zany, often bizarre hypotheticals.
Speaker 1: Just as Stephen Bryer posed to lawyers in his three
Speaker 1: decades on the bench. Imagine he made a hair prush
Speaker 1: in the shape of a grape. Imagine King tut sitting
Speaker 1: in front of the pyramid where all his gold is stored.
Speaker 1: Purpose selifane on depominate signals the presence of a hot dog.
Speaker 1: Stand a preventium from going to a Lithuanian movie. Now,
Speaker 1: why does that sound so odd? And Brier once had
Speaker 1: a partner in his wacky hypotheticals in the late Justice
Speaker 1: antonin Scalia. It's like a rabbit duck, you know, is
Speaker 1: it a rabbit or is it a done jackals a baby?
Speaker 1: I never heard Now it turns out the only people
Speaker 1: who use kerosene besides railroads or ice cream wagons. What's
Speaker 1: an ice cream wagon? Anyway? I didn't understand jessice probes
Speaker 1: question where he said the the amiable bank Cooper says,
Speaker 1: would you please, Steven, what do you say? Would you
Speaker 1: please step up? I'm walking through it your hair office.
Speaker 1: What he says, my example was meant doing compass of
Speaker 1: a polite and armed bank rob. I've been talking to
Speaker 1: Professor Stephen Vladdock of the University of Texas Law School. Steve,
Speaker 1: I'm going to miss Justice Bryer in your arguments. He
Speaker 1: livened up oral arguments by presenting some crazy hypotheticals, and
Speaker 1: you argued at the court, are those difficult to answer?
Speaker 1: Difficult to understand? For me? It's funny just say the
Speaker 1: court I say that, you know he's terrified generations like yeah,
Speaker 1: I mean Jessice Briar. He has this sort of a
Speaker 1: loose effect that I think folks may not fully appreciate it,
Speaker 1: sometimes not entirely. How do I say inherit that I think,
Speaker 1: you know, to some degree he's having spawned, at least
Speaker 1: in some of these cases, with the very fact that
Speaker 1: you know, we're struggling over these questions. When he starts
Speaker 1: talking about James Oglethorpe's third cousin, I think able to
Speaker 1: come up in a case a couple of terms ago.
Speaker 1: You know, I don't think it's like a class cloud.
Speaker 1: Then I think it's that he's just thinking out loud
Speaker 1: and he's puzzling through these cases. You know the way
Speaker 1: that he approaches these cases, which is with a very
Speaker 1: prodomatic bet informed by his very areadite backgrafd. I think
Speaker 1: arguments will be different after Jessice brier I'm not sure
Speaker 1: how many of us will miss the you know, three
Speaker 1: page long question. I got in trouble once because he
Speaker 1: asked me a long, multipart question and I sort of
Speaker 1: I probably took a little bit of liberty, but I said,
Speaker 1: you know, if I made justice prior, I'd like to
Speaker 1: answer that three part And he said there was one question.
Speaker 1: It was his style, dude, And it was a style
Speaker 1: that was in some respects cute and I think will
Speaker 1: be probably missed if it doesn't necessarily affectives beyond just
Speaker 1: how we prepare for arguments. You always hear that Justice
Speaker 1: Brian was a consensus builder. President Biden even mentioned it.
Speaker 1: How did he approach the internal dealings with other justices
Speaker 1: on cases? From what we know, and of course there's
Speaker 1: a lot we still don't, Justice Briar was very often
Speaker 1: one who would try to form coalitions behind the scenes.
Speaker 1: We know from reporting, for example by Jana Stupid and
Speaker 1: jan Crawford Greenberg, that Briar helped afford to compromise in
Speaker 1: the Affordable Care Act decision, where he and Justice Kagan
Speaker 1: worked together with Chief Justice Roberts to come up with
Speaker 1: sort of a series of decisions they could all live with.
Speaker 1: We know that he worked in various circumstances with Justice
Speaker 1: Kennedy before she retired, with Justice O'Connor to forge consensus,
Speaker 1: and so I think this again goes to how much
Speaker 1: the court moved around him that by when Justice Kavanaugh
Speaker 1: replaced Justice Brier, I don't know who was left for
Speaker 1: him to work with. And I'm not sure that he
Speaker 1: thought if he still had folks on the right with
Speaker 1: whom he could forge consents, this at least due in
Speaker 1: any of the high profile cases where those kinds of
Speaker 1: ideological differences tend to manifest. So he was I think
Speaker 1: for much of his career actively involved in trying to
Speaker 1: sort of tend the center of the court. And one
Speaker 1: of the real legacies of his resignation and his retirement,
Speaker 1: and one of the real sort of darker linings of
Speaker 1: all of this, is how much that center just no
Speaker 1: longer exists. As you mentioned, he taught administrative law before
Speaker 1: being appointed to the First Circuit. Were there issues that
Speaker 1: he was passionate about during his long tenure on the court? Oh?
Speaker 1: I think Justice Brier was very passionate um in ways
Speaker 1: that perhaps you know, not everyone would be about administrative law,
Speaker 1: about the relationship between Congress and the executive branch about
Speaker 1: sort of the public responsibility of the Court to maintain
Speaker 1: and facilitate that relationship as opposed to obstructing it. But
Speaker 1: you know, I don't think we associate him quite the
Speaker 1: same way with any one particular line of issues or
Speaker 1: line of cases that, for example, we think about Justice
Speaker 1: Ginsburg or even perhaps Justice to my Or. And I
Speaker 1: think part of that again because where he was most
Speaker 1: effective was usually out of the limelight, was usually behind
Speaker 1: the scene, where it wasn't that he was necessarily taken
Speaker 1: out some very visible public position, or he was really
Speaker 1: trying to help the Court as an institution move along.
Speaker 1: And I think that's why as we hear from the
Speaker 1: other justices about his forthcoming retirement, I suspect we're gonna
Speaker 1: hear a lot about that and about how much they
Speaker 1: enjoyed having him around and how much he aided them
Speaker 1: in their own sort of approach to their jobs. So
Speaker 1: that's why I think this is going to be such
Speaker 1: an interesting process over the coming weeks and months, because
Speaker 1: Justice Brior, whatever you might think about him, in no
Speaker 1: respects was he ever a lightning rod. And I think
Speaker 1: as part of why this confirmation process is such an
Speaker 1: interesting departure from the last couple of confirmations that we've
Speaker 1: been through. Explain how so how it will be different,
Speaker 1: because it's been incredibly conscientious. The confirmation process has become
Speaker 1: ugly in certain respect. Yeah, I mean, I think we
Speaker 1: everyone had short memories. But if we harken back, you know,
Speaker 1: twelve years, thirteen years when Justice was nominated to replace
Speaker 1: Justice Tudor, you know, yeah, there was some of the
Speaker 1: same ugliness about Justice to Order her background, but compared
Speaker 1: to the confirmations that would follow it, it was actually
Speaker 1: a pretty smooth failing. And I think part of that
Speaker 1: was because, as with Justice Brier, everyone understood that that
Speaker 1: particular confirmation was not going to shift to the center
Speaker 1: of gravity on the course, It was not going to
Speaker 1: radically change the direction of the Court, and that the
Speaker 1: justice that Justice Brier was replaced him in. Justice Tudor
Speaker 1: was a very significant member of the Court, but he
Speaker 1: wasn't necessarily out on a limb all by himself where
Speaker 1: his departure was going to open up. Some gave him
Speaker 1: whole in the Court's jurisprudence, and if that's very much
Speaker 1: what this field like as well, where whoever President by
Speaker 1: the nominator, you know, I think will almost certainly sort
Speaker 1: of be to the left of Justice brier But of
Speaker 1: course that's not going to move the court because Justice
Speaker 1: Briar is no longer anywhere close to the center of gravity.
Speaker 1: And I think that's part of why, at least from
Speaker 1: where I'm stood in I don't think this is going
Speaker 1: to be as contentious a process as when Justice Kavanaugh
Speaker 1: was nominated to succeed Justice Kennedy or when Justice Barrett
Speaker 1: was nominated to succeed Justice Ginsborough, because the sticks June
Speaker 1: are just still very different. So how would you describe
Speaker 1: his legacy on the Court? Um? You know, I think
Speaker 1: much much the same way that I thought of like
Speaker 1: Justice stevens legacy when Justice steven stepped down in that
Speaker 1: you know, Justice Stevens famously was appointed by President Ford
Speaker 1: was a Republican, a lifelong Republican who, by the end
Speaker 1: of his career was one of the more solidly reliably
Speaker 1: liberal votes on the Court. And you know, Stevens, when
Speaker 1: he was asked in he said, I didn't move so
Speaker 1: much as the Court moved around UM. And I think,
Speaker 1: you know, there was not Um. There's a some play
Speaker 1: in that. I think, you know, Justice Stevens might have
Speaker 1: been a little bit exaggerated, but he wasn't totally exaggerated.
Speaker 1: And I really think, like when we look at Justice
Speaker 1: Briar's life, that's gonna be a big part of the story,
Speaker 1: like what might have been. Um, you know, if um,
Speaker 1: Hillary Clinton wins the election and we have a democratic
Speaker 1: majority on the Court for the first time since nineteen
Speaker 1: Justice Brier would have been an enormously important part of
Speaker 1: that story. Um. Right, He and Justice Ginsbrod would have
Speaker 1: been the senior liberals on the Court, UM, and therefore
Speaker 1: usually in control of the majority in divisive cases. So,
Speaker 1: you know, I think his legacy is going to be defined,
Speaker 1: at least in part by what could have been. I
Speaker 1: think his legacy will be defined by, you know, how
Speaker 1: much he sort of lived in the center while there
Speaker 1: was still a center to live in, alongside Justice Kennedy,
Speaker 1: Justice O'Connor, And I think because legacy would be defined
Speaker 1: by sort of an age gone by where having a
Speaker 1: pragmatic judge on the Court who thought that part of
Speaker 1: the job was to build consensus across the perceived dial
Speaker 1: was actually a feature and not a bug. You're going
Speaker 1: to have Briar, who's been on the Court for almost
Speaker 1: thirty years, being replaced by someone new and a black woman.
Speaker 1: How does that change the dynamic on the court and
Speaker 1: among the liberals on the court? Three women? Now the
Speaker 1: most significant thing it does, is it really I think
Speaker 1: elevates Justice Sodam I or that much further. But she
Speaker 1: now becomes not just perhaps the rhetorical leader of the
Speaker 1: liberal wing, but the senior member of the liberal wins.
Speaker 1: So when it comes to parcelong outdiscent, for example, in
Speaker 1: the high profile cases, you know that will fall to
Speaker 1: her as opposed to Justice Briar. But I also think
Speaker 1: that the other way it's going to change the dynamics is,
Speaker 1: you know, I think it is going to reflect yet
Speaker 1: a further generational change. One has to think that President
Speaker 1: Biden is going to appoint someone who is at the
Speaker 1: oldest in their early fifties. And so if that person
Speaker 1: serves for as long as Justice Briar serves, I mean
Speaker 1: the court is going to change again while they're on
Speaker 1: the court. So I think the internal dynamics will be
Speaker 1: harder for us to see. I think they will be
Speaker 1: most heavily felt among the three Democratic appointees and how
Speaker 1: they allocate their responsibility. Is there a June that the
Speaker 1: justice who replaces Justice prior might find her own mechanisms,
Speaker 1: her own ways of building consensus with some of her colleagues.
Speaker 1: On the other side, is a relationship between the new
Speaker 1: justice and justice corsets, for example, on criminal cases a
Speaker 1: possibility we'll have to see. But again, I mean, I
Speaker 1: think what really makes this whole process feel so different
Speaker 1: from the last couple of times we've been here is
Speaker 1: that these differences in the short term are going to
Speaker 1: just pale in comparison to the short term differences we
Speaker 1: saw between Kennedy and Kavanaugh, Guinsburg and Barrett. Of the
Speaker 1: list of replacements, does one stand out of the list
Speaker 1: of replacements, does one stand out? I don't know about one, June.
Speaker 1: I think there are two. From where I'm sit in
Speaker 1: Katangi Brown Jackson and Leandre Krueger are such compelling candidates
Speaker 1: in different ways and low though I am to bet
Speaker 1: on any particular candidates in this race, I would be
Speaker 1: very surprised if it wasn't one of those two. They're
Speaker 1: both fantastically qualified, They're both very smart, they're both highly
Speaker 1: regarded June. They had different backgrounds, They have different experience
Speaker 1: that Catani Brown Jackson was a district judge before she's
Speaker 1: an apelogige. She has trial experience. Leando Krueger before she's
Speaker 1: a California Supreme Court justice was a government lawyer. She
Speaker 1: worked in the executive press for the absol Regal Council.
Speaker 1: So I think there are hantilizing opportunities with both of them,
Speaker 1: and I think it's going to be a good problem
Speaker 1: for President Biden to have and trying to pick between
Speaker 1: them and the other names for being bandied about. Thanks
Speaker 1: so much, Steve, I always appreciate your insights. That's Professor
Speaker 1: Stephen Vladdock of the University of Texas Law School. The
Speaker 1: Supreme Court is passing on Oklahoma's aggressive attempt to topple
Speaker 1: the president on American Indian reservations and criminal justice established
Speaker 1: in the landmark case of mcgt va Oklahoma by a
Speaker 1: vote of five to four. The justices will not review
Speaker 1: the precedent established in McGirt, but will look at how
Speaker 1: the ruling applies to state prosecutions of non Indians. It
Speaker 1: will be one of the last argued case of the term.
Speaker 1: Both Indian tribes and the state of Oklahoma applauded the
Speaker 1: court's order On Friday. Joree me Is Bloomberg Law reporter
Speaker 1: Jordan Reuben. For those who don't remember McGirt, tell us
Speaker 1: what that landmark decision of mcg the Oklahoma stands for.
Speaker 1: So mcgert for Oklahoma stands for the proposition that the
Speaker 1: Skokie Creek Reservation, which is the reservation and issue in
Speaker 1: that case, had never been disbanded by Congress. That reservations
Speaker 1: still stands. It still exists, and by implications, so do
Speaker 1: several other reservations in the eastern half of Oklahoma. And
Speaker 1: that arose in a criminal case by a defendant who
Speaker 1: was challenging his conviction. He was Native American. He said
Speaker 1: the state of Oklahoma didn't have jurisdiction to charge him
Speaker 1: for a crime that took place on the reservation. And
Speaker 1: so to answer the question, the justices had to take
Speaker 1: a look at whether that reservation still in fact existed,
Speaker 1: which made the court go back and look at treaties
Speaker 1: and interpret those. And so the court said that the
Speaker 1: reservations do still in fact exist, and so that's what
Speaker 1: wounds up having this transformative effect on criminal justice and
Speaker 1: potentially some other areas of the law in Oklahoma. Remind
Speaker 1: us about the reaction to the ruling from the State
Speaker 1: of Oklahoma and the Indian tribes in Oklahoma. Sure so,
Speaker 1: from the state's perspective, and this was true. Heading into
Speaker 1: the decision, the state was warning that there would be
Speaker 1: chaos breaking out if the state didn't have jurisdictions to
Speaker 1: prosecute certain crimes, and that jurisdiction would then fall to
Speaker 1: tribes and the federal government, which the state said wasn't
Speaker 1: equipped at all to handle those things. That's what the
Speaker 1: state was saying ahead of the argument, And so then
Speaker 1: after the state lost the decision, it essentially reiterated those
Speaker 1: state arguments, saying, telling the court, Hey, all these things
Speaker 1: that we warned you about that we're going to happen,
Speaker 1: those in fact did happen, and now we want you
Speaker 1: to fix it by reversing the decision. The tribes those
Speaker 1: say that that's not true, that that narrative of chaos
Speaker 1: is not what's playing out in Oklahoma, and that to
Speaker 1: the extent there is this chaos, it's because of the
Speaker 1: state challenging them a gert decision itself, and not cooperating.
Speaker 1: So there's a circular effect to all of this. But
Speaker 1: the state and the tribes really aren't totally opposite ends
Speaker 1: of the spectrum. And when I say the state and
Speaker 1: the tribes, talking about the governor Stitch, who has been
Speaker 1: challenging this, there has been cooperation between the tribes and
Speaker 1: different state officials on the lower end, but at the
Speaker 1: higher end of it from the governor's office and the tribes,
Speaker 1: it's really been a serious battle there. So the State
Speaker 1: of Oklahoma asked the Supreme Court to reverse a decision
Speaker 1: it just handed down in that that's set a precedent
Speaker 1: for American Indian reservations. That's right, and so it's a
Speaker 1: pretty bold request. We hadn't really seen anything quite like this.
Speaker 1: It's obviously not unprecedented for the Court to overturn its precedent,
Speaker 1: but this request was unusual for how quickly it was
Speaker 1: being made, and being made obviously because of a change
Speaker 1: in composition on the court, with Justice Ginsburg having been
Speaker 1: in the five four majority against the state and then
Speaker 1: her dying and being replaced by Ammy Coney Barrett. Were
Speaker 1: there more than thirty petitions to the court, There were,
Speaker 1: and they were all raising this same issue, and so
Speaker 1: the state was raising this question of attempting to try
Speaker 1: and overturn the decision in as you said, over thirty
Speaker 1: petitions to the court, most of which were denied today
Speaker 1: on Monday, January denied in terms of the question of
Speaker 1: whether to overturned the precedent, But the Court did grant
Speaker 1: review on Friday of a related question that doesn't involve
Speaker 1: straight up overturning the decision. So explain what the court
Speaker 1: says it will review. So the court is going to
Speaker 1: review question of how mcgert applies to non Indians, the
Speaker 1: state's power over prosecuting non Indians. Mcgert involved in Indian defendant,
Speaker 1: But in the state's eyes, that left open the question
Speaker 1: of whether a state can prosecute non Indians who commit
Speaker 1: crimes against Indians in Indian country, which is the legal
Speaker 1: term referred to for the reservation. And so it's essentially
Speaker 1: still a question about state power and state authority, which
Speaker 1: was what's happening against the backdrop of the broader mcgert issue,
Speaker 1: but now in a narrower way, not taking on this
Speaker 1: broader question of whether to straight up overturn the decision
Speaker 1: that the court just issued. So Jordan's is there any
Speaker 1: way the Justices could cut back on the part of
Speaker 1: the ruling they say they're not reviewing. They certainly could,
Speaker 1: But I think that no matter what the court winds
Speaker 1: up doing, whether it's seen as cutting back or expanding,
Speaker 1: is going to depends on from what vantage point you're
Speaker 1: viewing the case to begin with. Because, certainly, from the
Speaker 1: tribes perspective, that could be seen as cutting back on mcgert.
Speaker 1: From the state's perspective, not applying the states authorities and
Speaker 1: non Indians would be seen as an impermissible expansion of mcgart.
Speaker 1: So we see this in other cases to where whether
Speaker 1: you're talking about expanding or narrowing can depend on where
Speaker 1: you're sitting where you're viewing this from. But certainly the
Speaker 1: court can wind up in some ways narrowing the effect
Speaker 1: of the mcgret decision. And both sides applauded the Supreme
Speaker 1: Court's order to take this right. So when Oklahoma was
Speaker 1: petitioning the court asking the Court to overturn the mcgret decision,
Speaker 1: you had tribes affected by the ruling filing amicus briefs
Speaker 1: telling the Court not to reverse this decision, which the
Speaker 1: tribes had really hailed as a import landmark ruling, and
Speaker 1: so then obviously when the court denied review of that
Speaker 1: broader question, the tribes applauded that. And I thought it
Speaker 1: was interesting that in his statement on the court granting
Speaker 1: review of just an narrower question, Governor Stitt also applauded
Speaker 1: the ruling the decision to take on this narrower question
Speaker 1: as well, without really acknowledging the fact that the state
Speaker 1: had lost its attempt to take on the broader issue.
Speaker 1: It takes four votes to grant review of a case,
Speaker 1: and does it seem as if it wasn't Gorsage and
Speaker 1: the three liberals who were in the majority of McGirt
Speaker 1: who would have authorized this. It seems like it's the conservatives, right,
Speaker 1: those might have been the least likely, I would say,
Speaker 1: out of those four who are left from the majority decision.
Speaker 1: Of course, that even though he authored mcg could potentially
Speaker 1: have still been the most likely out of those four.
Speaker 1: Two have granted review of this question because in some
Speaker 1: ways it is an issue that does in directly implicate
Speaker 1: the broader interests of mcgred, although some people think that
Speaker 1: it might, but it's certainly possible that more than for
Speaker 1: Justice were willing to take on this issue. But as
Speaker 1: you said, the fact that the Court keeps this sort
Speaker 1: of vote secret, we just don't know, at least for now.
Speaker 1: And the only difference in the composition of the court
Speaker 1: is that Emmy Coney Barrett has replaced Justice Ruth Bader Ginsburg.
Speaker 1: That's right, and not in their legal filings. But state officials,
Speaker 1: at the same time that they were attempting to reverse
Speaker 1: the decision made public comments directly saying that that they
Speaker 1: hope that the change in composition of the court would
Speaker 1: help the Court to change course in the state's favor.
Speaker 1: So that wasn't the direct legal argument that the state's
Speaker 1: lawyers were making, but that was obviously the effect of
Speaker 1: what they were saying. And on top of that, the
Speaker 1: governor directly made that statement in at least one interview
Speaker 1: that I came across. So I remember when we talked
Speaker 1: about this earlier, when Oklahoma was asking the Supreme Court
Speaker 1: to overturn it, it seemed like it would be, you know,
Speaker 1: odd for the Court to grant reviews so soon afterwards.
Speaker 1: But did this come as a surprise that the Court
Speaker 1: granted this limited review. Not to me, because before the
Speaker 1: state injected this attempt after Justice Ginsburgh died too overturn
Speaker 1: mcger This was an issue that the state was pushing
Speaker 1: for even before then, and so at that point I
Speaker 1: thought that there was going to be a decent chance
Speaker 1: that the state was going to take on this issue
Speaker 1: of the states jurisdiction after mcgart once they also requested
Speaker 1: to straight up over turn mcgert. I would have been
Speaker 1: very surprised if the Court had even granted review of
Speaker 1: that question. But as to the question the Court did
Speaker 1: grant review on, I wouldn't say that that's too surprising.
Speaker 1: So the claims that Oklahoma has made, you know, sort
Speaker 1: of the chaos in Oklahoma after the decision, has any
Speaker 1: of that been shown to be true or is that
Speaker 1: just exaggeration? So I think it's probably both that there
Speaker 1: are some things that are true and there are some
Speaker 1: things that are being exaggerated. When you whenever you have
Speaker 1: a decision that's affecting criminal defendant's rights, there's no doubt
Speaker 1: there are always going to be cases that either wind
Speaker 1: up getting prosecuted differently or don't wind up getting prosecuted
Speaker 1: at all. That's a fact of life. That's what happens
Speaker 1: when the court applies the law sometimes. Now, I don't
Speaker 1: think that it's the case that there is this chaos
Speaker 1: to the extent that the state is painting. It's certainly
Speaker 1: not from talking to people who are working with the
Speaker 1: tribes on the ground there and reporting that I've done.
Speaker 1: But that's certainly not to say that there haven't been
Speaker 1: real effects from Mcgert. I think everybody agrees about that.
Speaker 1: It's more of just a question of what does the
Speaker 1: law say. And in Mcgert it said that the state
Speaker 1: doesn't have this jurisdiction, and now there's the question of
Speaker 1: whether the state has this now or form of jurisdiction.
Speaker 1: And so these questions about the effect of the ruling
Speaker 1: are really almost besides the point. Obviously they're super important
Speaker 1: on the ground that as to the specific legal question,
Speaker 1: these are questions about statutory interpretation and treaties. It's just
Speaker 1: that these other issues are getting brought up in the
Speaker 1: background and really trying to be used to press the
Speaker 1: justice to rule a certain way. And um, when will
Speaker 1: this be heard? Will it be heard this term or
Speaker 1: next term? It will be heard this term? And that's
Speaker 1: actually a more interesting question than usual about when a
Speaker 1: case is going to be heard, because it looks like
Speaker 1: this is going to be the last case that kind
Speaker 1: of squeaked in right at the last minute to be
Speaker 1: heard this term, because this past Friday was sort of
Speaker 1: the unofficial last day that the court could have granted
Speaker 1: a new case to be heard this term, and usually
Speaker 1: when a court is granting review of a case, it
Speaker 1: won't say exactly when it's going to be heard, but
Speaker 1: to put aside any doubt in the courts order, it
Speaker 1: said this case is going to be argued in the
Speaker 1: last session in April, and put the case even on
Speaker 1: a somewhat expedited briefing schedule, And so we know that
Speaker 1: the case is going to be heard this term according
Speaker 1: to the court, and it might well be the last
Speaker 1: case granted to be heard this term. Thanks so much, Jordan.
Speaker 1: As always, that's Bloomberg Law reporter Jordan Ruben, and that's
Speaker 1: it for this edition of the Bloomberg Law Show. Remember
Speaker 1: you can always get the latest legal news on our
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Speaker 1: every week night at ten BM Wall Street Time. I'm
Speaker 1: June Grosso and you're listening to Bloomberg