WEBVTT - The Legacy of Justice Stephen Breyer 0:00:03.200 --> 0:00:07.960 This is Bloomberg Law with June Brussel from Bloomberg Radio. 0:00:10.640 --> 0:00:13.440 Everyone knows that Stephen Briar has been an exemplary justice, 0:00:14.280 --> 0:00:17.840 fair to the parties before him, courteous to his colleagues, 0:00:18.400 --> 0:00:22.160 careful in his reasoning. He's written landmark opinions on topics 0:00:22.239 --> 0:00:25.880 ranging from reproductive rights to healthcare, devoni rights, to patent law, 0:00:26.200 --> 0:00:28.720 to laws protecting our environment and the laws to protect 0:00:28.760 --> 0:00:32.519 our religious practices. Justice Stephen Brier will step down from 0:00:32.520 --> 0:00:35.760 the Supreme Court after twenty eight years on the bench. 0:00:36.680 --> 0:00:40.559 Known as a scholar, a pragmatist, a consensus builder, and 0:00:40.640 --> 0:00:45.360 an optimist with a professorial air, Briar displayed those qualities 0:00:45.400 --> 0:00:48.159 in his remarks at the White House on Thursday. The 0:00:48.280 --> 0:00:51.440 Justice said that in his talks with students, he reminds 0:00:51.479 --> 0:00:54.480 them that our system of government should still be considered 0:00:54.520 --> 0:00:58.960 an experiments. That next generation and the one after that, 0:01:00.040 --> 0:01:04.560 my grandchildren and their children, they'll determine whether the experiment 0:01:04.680 --> 0:01:08.440 still works. And of course I'm an optimist and I'm 0:01:08.520 --> 0:01:12.600 pretty sure it will. Does it surprise you that that's 0:01:12.640 --> 0:01:16.040 the thought that comes into my mind today? My guest 0:01:16.080 --> 0:01:21.280 to discuss Justice Friar's legacy is constitutional law scholar Stephen Vladdock, 0:01:21.400 --> 0:01:24.920 a professor at the University of Texas Law School. Justice 0:01:24.920 --> 0:01:28.680 Briar has been adamant in the past that justices are 0:01:28.680 --> 0:01:32.640 not political. Once they take their oath, they quote, are 0:01:32.720 --> 0:01:35.200 loyal to the rule of law, not to the political 0:01:35.240 --> 0:01:39.720 party that helps secure their appointment. But his retirement now 0:01:39.920 --> 0:01:43.560 before the end of the term, giving the Democratic president 0:01:43.640 --> 0:01:47.640 plenty of time to get another justice confirmed before possible 0:01:47.800 --> 0:01:51.320 change in power in the Senate. Is it Briar's acknowledgement 0:01:51.520 --> 0:01:55.920 that politics and the court are intertwined. And I think 0:01:56.000 --> 0:01:58.400 the question is whether you can somehow walk a tight 0:01:58.480 --> 0:02:01.640 rope between acknowledge and I think everyone has to that 0:02:01.760 --> 0:02:05.040 the confirmation process is political, that political actors in the 0:02:05.040 --> 0:02:07.480 form of the President and the Senate are making political 0:02:07.520 --> 0:02:10.839 decisions about who to nominate about time in while still 0:02:10.919 --> 0:02:14.519 believing that once the process is oak, once the justices 0:02:14.600 --> 0:02:17.079 confirmed and takes the oath and joins the bench, that 0:02:17.200 --> 0:02:20.000 what they're doing is somehow divorced from politics. And you know, 0:02:20.040 --> 0:02:22.720 I think Justice Brier maybe the last of his kind 0:02:23.120 --> 0:02:26.760 in trying to argue forcefully that yes, that's the line 0:02:26.800 --> 0:02:29.080 that can be preserved that we can have a political, 0:02:29.280 --> 0:02:33.360 if not partisan, confirmation process and still be judges doing 0:02:33.600 --> 0:02:36.760 you know, judicial power as opposed to political power. Once 0:02:36.800 --> 0:02:38.760 we've done our robes, you know, I think the question 0:02:38.840 --> 0:02:41.520 is how many folks still believe that there are a 0:02:41.520 --> 0:02:44.799 lot of textualists on the court now. Briar was more 0:02:44.919 --> 0:02:49.240 of a pragmatist. Tell us about his approach to the constitution, 0:02:49.680 --> 0:02:51.720 Justice Brier, and I'm sure part of this is a 0:02:51.760 --> 0:02:55.480 reflection of his experience, first as a long time Senate staffer, 0:02:55.880 --> 0:02:59.040 as an administrative law guru, as a professor, and then 0:02:59.160 --> 0:03:01.079 June as you know, as a lower court judge. He 0:03:01.240 --> 0:03:03.800 really thought that when it comes to the structure of government, 0:03:04.040 --> 0:03:06.480 the best way to think about how the branches relate 0:03:06.560 --> 0:03:09.600 to each other is, you know, a more functionalist approach, 0:03:09.639 --> 0:03:12.799 where the branches are not hermetically sealed from each other, 0:03:13.320 --> 0:03:16.000 where there's power sharing, where the checks and balances are 0:03:16.000 --> 0:03:18.919 both formal and informal. And the informal part is what 0:03:19.000 --> 0:03:21.920 often gets missed in contemporary discourse. But Briar knew of 0:03:22.000 --> 0:03:24.160 what he spoke. He was part of it when he 0:03:24.280 --> 0:03:26.960 was working for the Judiciary Committee, when he was involved 0:03:26.960 --> 0:03:29.280 in the Administrative Conference the United States, and so I 0:03:29.280 --> 0:03:32.280 think his approach to judge him was the notion that 0:03:32.360 --> 0:03:34.880 it is not forbidden, it is not a sin to 0:03:35.000 --> 0:03:37.680 look at the Constitution, to look at statutes, to look 0:03:37.680 --> 0:03:41.280 at circumstances where judges are allowed to exercise a modicum 0:03:41.320 --> 0:03:44.880 of independent judgment, and ask what actually makes the most sense, 0:03:44.960 --> 0:03:47.600 what would be the most administrable, what would be the 0:03:47.600 --> 0:03:51.160 most efficient, and that kind of functional as pragmotism used 0:03:51.160 --> 0:03:53.120 to be a lot more common on the Court. And 0:03:53.160 --> 0:03:55.240 I think it's, you know, again, another respect in which 0:03:55.600 --> 0:03:57.800 Briar's retirement may well be the end of an era. 0:03:58.360 --> 0:04:01.880 Justice Briar was on the bed in nearly three decades, 0:04:02.480 --> 0:04:05.240 yet he wasn't as well known to the general public 0:04:05.600 --> 0:04:09.040 as other justices. I don't think folks think about Justice 0:04:09.040 --> 0:04:11.040 Brier the same way that maybe they think about like 0:04:11.200 --> 0:04:14.240 Justice Stood to My or Justice Ginsburg, because he wasn't 0:04:14.240 --> 0:04:18.160 as visible in cases affecting civil rights, for example. But 0:04:18.520 --> 0:04:20.880 for all his words, for all his laws, not the 0:04:20.880 --> 0:04:23.240 site of fact, it was Justice Brier who wrote what 0:04:23.520 --> 0:04:27.000 until recently it was probably the most important contemporary abortion 0:04:27.040 --> 0:04:29.600 decision in favor of women's right to choose and the 0:04:29.640 --> 0:04:33.120 whole Women's health case. In it was Justice Brier who 0:04:33.200 --> 0:04:36.679 was often writing with the leading decisions in affirmative action cases. 0:04:36.760 --> 0:04:39.200 It was Justice Brier who was supported at least a 0:04:39.320 --> 0:04:42.240 large chunk of the Court's jurisprudence that you know is 0:04:42.279 --> 0:04:45.760 now in dissent. And so I think what complicates his legacy, 0:04:45.839 --> 0:04:48.720 June is not him. I think we knew who he 0:04:48.920 --> 0:04:53.159 was when President Clinton nominated him. It's how much the 0:04:53.200 --> 0:04:56.120 Court moved around him. It's how different a court he 0:04:56.320 --> 0:04:59.480 left than the court that he joined, and how he 0:04:59.520 --> 0:05:01.640 looked through that lens as opposed to the lens that 0:05:01.680 --> 0:05:04.080 we thought we'd be assessed him through twenty years ago. 0:05:04.800 --> 0:05:07.960 Would you describe him as more of a moderate than 0:05:08.000 --> 0:05:11.200 a liberal? These terms are so subjective. I certainly think 0:05:11.279 --> 0:05:14.360 that for the duration of his tenure on the Court 0:05:14.640 --> 0:05:19.040 he was probably the most centrist of the justices typically 0:05:19.040 --> 0:05:22.600 identified as locals that of the Democratic appointees, and even 0:05:22.600 --> 0:05:24.600 when Justice Stevenson Suder were still on the Court, that 0:05:24.640 --> 0:05:26.719 Briar was probably the one closest to the center, and 0:05:26.800 --> 0:05:29.599 June we have empirical evidence of that. There were high 0:05:29.640 --> 0:05:32.520 profile cases where it was Brier who provided the key 0:05:32.640 --> 0:05:34.600 fifth vote in favor of what we might think it 0:05:34.640 --> 0:05:37.120 was a more conservative position the ham decase than two 0:05:37.120 --> 0:05:39.080 thousand and four. It was Brian who provided the fifth 0:05:39.200 --> 0:05:41.760 vote for the proposition that even American citizens could be 0:05:41.800 --> 0:05:44.520 detained as enemy combatant. It was Justice Brier in the 0:05:44.640 --> 0:05:47.400 series of cases in the early ten who actually traded 0:05:47.440 --> 0:05:51.440 placed it with Justice Kennedy in some fairly significant questions 0:05:51.480 --> 0:05:54.280 about the right to sue the government to enforce federal 0:05:54.320 --> 0:05:56.840 claims against data officers. And so I don't think there's 0:05:56.880 --> 0:06:00.120 any question that he was certainly the most moderate of 0:06:00.240 --> 0:06:02.800 the justices we typically used the L word for. The 0:06:02.880 --> 0:06:05.400 question is whether that made him a moderate in the abstract, 0:06:05.400 --> 0:06:07.120 and the same folks is going to disagree about that. 0:06:07.440 --> 0:06:11.120 Coming up, I'll continue this conversation with Professor Stephen Vladik 0:06:11.480 --> 0:06:14.279 how the court will change to me that what the 0:06:14.360 --> 0:06:17.000 judge was saying is wait a minute. Suppose what the 0:06:17.000 --> 0:06:20.760 guy had said at the company was yes, ishka bibble, 0:06:21.000 --> 0:06:27.120 tomato children, mob, monopoly, robocall, loving Grandma's green eyed turkeys. 0:06:27.720 --> 0:06:31.400 These are just some of the zany, often bizarre hypotheticals. 0:06:31.440 --> 0:06:34.360 Just as Stephen Bryer posed to lawyers in his three 0:06:34.400 --> 0:06:37.279 decades on the bench. Imagine he made a hair prush 0:06:37.320 --> 0:06:41.440 in the shape of a grape. Imagine King tut sitting 0:06:41.520 --> 0:06:44.320 in front of the pyramid where all his gold is stored. 0:06:45.360 --> 0:06:48.680 Purpose selifane on depominate signals the presence of a hot dog. 0:06:48.760 --> 0:06:53.560 Stand a preventium from going to a Lithuanian movie. Now, 0:06:53.600 --> 0:06:56.920 why does that sound so odd? And Brier once had 0:06:56.960 --> 0:07:00.479 a partner in his wacky hypotheticals in the late Justice 0:07:00.520 --> 0:07:03.359 antonin Scalia. It's like a rabbit duck, you know, is 0:07:03.360 --> 0:07:05.960 it a rabbit or is it a done jackals a baby? 0:07:05.960 --> 0:07:11.280 I never heard Now it turns out the only people 0:07:11.320 --> 0:07:15.680 who use kerosene besides railroads or ice cream wagons. What's 0:07:15.680 --> 0:07:21.480 an ice cream wagon? Anyway? I didn't understand jessice probes 0:07:21.640 --> 0:07:25.320 question where he said the the amiable bank Cooper says, 0:07:25.320 --> 0:07:27.240 would you please, Steven, what do you say? Would you 0:07:27.240 --> 0:07:31.000 please step up? I'm walking through it your hair office. 0:07:31.080 --> 0:07:34.720 What he says, my example was meant doing compass of 0:07:34.760 --> 0:07:38.400 a polite and armed bank rob. I've been talking to 0:07:38.440 --> 0:07:42.640 Professor Stephen Vladdock of the University of Texas Law School. Steve, 0:07:42.760 --> 0:07:46.240 I'm going to miss Justice Bryer in your arguments. He 0:07:46.440 --> 0:07:52.040 livened up oral arguments by presenting some crazy hypotheticals, and 0:07:52.200 --> 0:07:54.880 you argued at the court, are those difficult to answer? 0:07:55.400 --> 0:07:59.560 Difficult to understand? For me? It's funny just say the 0:07:59.560 --> 0:08:04.000 court I say that, you know he's terrified generations like yeah, 0:08:04.040 --> 0:08:06.280 I mean Jessice Briar. He has this sort of a 0:08:06.360 --> 0:08:09.760 loose effect that I think folks may not fully appreciate it, 0:08:09.880 --> 0:08:13.760 sometimes not entirely. How do I say inherit that I think, 0:08:13.800 --> 0:08:16.440 you know, to some degree he's having spawned, at least 0:08:16.480 --> 0:08:18.600 in some of these cases, with the very fact that 0:08:18.680 --> 0:08:20.960 you know, we're struggling over these questions. When he starts 0:08:21.000 --> 0:08:24.840 talking about James Oglethorpe's third cousin, I think able to 0:08:24.840 --> 0:08:26.280 come up in a case a couple of terms ago. 0:08:26.840 --> 0:08:28.679 You know, I don't think it's like a class cloud. 0:08:28.680 --> 0:08:31.200 Then I think it's that he's just thinking out loud 0:08:31.480 --> 0:08:34.000 and he's puzzling through these cases. You know the way 0:08:34.000 --> 0:08:36.000 that he approaches these cases, which is with a very 0:08:36.000 --> 0:08:41.040 prodomatic bet informed by his very areadite backgrafd. I think 0:08:41.240 --> 0:08:44.720 arguments will be different after Jessice brier I'm not sure 0:08:44.760 --> 0:08:47.080 how many of us will miss the you know, three 0:08:47.120 --> 0:08:50.440 page long question. I got in trouble once because he 0:08:50.520 --> 0:08:54.000 asked me a long, multipart question and I sort of 0:08:55.120 --> 0:08:56.880 I probably took a little bit of liberty, but I said, 0:08:56.920 --> 0:08:58.840 you know, if I made justice prior, I'd like to 0:08:58.840 --> 0:09:01.920 answer that three part And he said there was one question. 0:09:02.640 --> 0:09:05.360 It was his style, dude, And it was a style 0:09:05.440 --> 0:09:07.840 that was in some respects cute and I think will 0:09:07.840 --> 0:09:11.200 be probably missed if it doesn't necessarily affectives beyond just 0:09:11.280 --> 0:09:14.200 how we prepare for arguments. You always hear that Justice 0:09:14.200 --> 0:09:17.920 Brian was a consensus builder. President Biden even mentioned it. 0:09:18.120 --> 0:09:21.880 How did he approach the internal dealings with other justices 0:09:21.920 --> 0:09:24.679 on cases? From what we know, and of course there's 0:09:24.720 --> 0:09:27.320 a lot we still don't, Justice Briar was very often 0:09:27.400 --> 0:09:30.000 one who would try to form coalitions behind the scenes. 0:09:30.200 --> 0:09:32.839 We know from reporting, for example by Jana Stupid and 0:09:32.920 --> 0:09:36.200 jan Crawford Greenberg, that Briar helped afford to compromise in 0:09:36.240 --> 0:09:39.680 the Affordable Care Act decision, where he and Justice Kagan 0:09:39.880 --> 0:09:42.160 worked together with Chief Justice Roberts to come up with 0:09:42.200 --> 0:09:44.679 sort of a series of decisions they could all live with. 0:09:44.880 --> 0:09:47.360 We know that he worked in various circumstances with Justice 0:09:47.440 --> 0:09:51.360 Kennedy before she retired, with Justice O'Connor to forge consensus, 0:09:51.400 --> 0:09:53.800 and so I think this again goes to how much 0:09:53.840 --> 0:09:58.200 the court moved around him that by when Justice Kavanaugh 0:09:58.240 --> 0:10:01.280 replaced Justice Brier, I don't know who was left for 0:10:01.360 --> 0:10:03.199 him to work with. And I'm not sure that he 0:10:03.360 --> 0:10:05.520 thought if he still had folks on the right with 0:10:05.559 --> 0:10:08.040 whom he could forge consents, this at least due in 0:10:08.080 --> 0:10:10.640 any of the high profile cases where those kinds of 0:10:10.760 --> 0:10:13.920 ideological differences tend to manifest. So he was I think 0:10:13.960 --> 0:10:17.040 for much of his career actively involved in trying to 0:10:17.080 --> 0:10:20.160 sort of tend the center of the court. And one 0:10:20.200 --> 0:10:23.520 of the real legacies of his resignation and his retirement, 0:10:23.520 --> 0:10:25.959 and one of the real sort of darker linings of 0:10:26.000 --> 0:10:28.280 all of this, is how much that center just no 0:10:28.360 --> 0:10:31.920 longer exists. As you mentioned, he taught administrative law before 0:10:32.000 --> 0:10:35.400 being appointed to the First Circuit. Were there issues that 0:10:35.480 --> 0:10:39.800 he was passionate about during his long tenure on the court? Oh? 0:10:39.840 --> 0:10:42.960 I think Justice Brier was very passionate um in ways 0:10:43.000 --> 0:10:46.280 that perhaps you know, not everyone would be about administrative law, 0:10:46.320 --> 0:10:50.280 about the relationship between Congress and the executive branch about 0:10:50.320 --> 0:10:53.520 sort of the public responsibility of the Court to maintain 0:10:53.920 --> 0:10:57.040 and facilitate that relationship as opposed to obstructing it. But 0:10:57.080 --> 0:11:00.040 you know, I don't think we associate him quite the 0:11:00.080 --> 0:11:02.679 same way with any one particular line of issues or 0:11:02.720 --> 0:11:04.880 line of cases that, for example, we think about Justice 0:11:04.880 --> 0:11:07.160 Ginsburg or even perhaps Justice to my Or. And I 0:11:07.200 --> 0:11:10.439 think part of that again because where he was most 0:11:10.520 --> 0:11:13.680 effective was usually out of the limelight, was usually behind 0:11:13.720 --> 0:11:16.480 the scene, where it wasn't that he was necessarily taken 0:11:16.559 --> 0:11:19.560 out some very visible public position, or he was really 0:11:19.559 --> 0:11:22.079 trying to help the Court as an institution move along. 0:11:22.240 --> 0:11:24.400 And I think that's why as we hear from the 0:11:24.440 --> 0:11:27.760 other justices about his forthcoming retirement, I suspect we're gonna 0:11:27.760 --> 0:11:29.840 hear a lot about that and about how much they 0:11:29.960 --> 0:11:33.040 enjoyed having him around and how much he aided them 0:11:33.040 --> 0:11:34.960 in their own sort of approach to their jobs. So 0:11:35.240 --> 0:11:36.560 that's why I think this is going to be such 0:11:36.559 --> 0:11:39.760 an interesting process over the coming weeks and months, because 0:11:39.920 --> 0:11:42.200 Justice Brior, whatever you might think about him, in no 0:11:42.320 --> 0:11:44.520 respects was he ever a lightning rod. And I think 0:11:44.559 --> 0:11:46.440 as part of why this confirmation process is such an 0:11:46.480 --> 0:11:49.800 interesting departure from the last couple of confirmations that we've 0:11:49.800 --> 0:11:53.360 been through. Explain how so how it will be different, 0:11:53.400 --> 0:11:58.520 because it's been incredibly conscientious. The confirmation process has become 0:11:58.640 --> 0:12:01.600 ugly in certain respect. Yeah, I mean, I think we 0:12:01.679 --> 0:12:03.920 everyone had short memories. But if we harken back, you know, 0:12:04.000 --> 0:12:08.320 twelve years, thirteen years when Justice was nominated to replace 0:12:08.400 --> 0:12:10.400 Justice Tudor, you know, yeah, there was some of the 0:12:10.440 --> 0:12:14.480 same ugliness about Justice to Order her background, but compared 0:12:14.520 --> 0:12:16.920 to the confirmations that would follow it, it was actually 0:12:16.960 --> 0:12:18.920 a pretty smooth failing. And I think part of that 0:12:18.960 --> 0:12:23.200 was because, as with Justice Brier, everyone understood that that 0:12:23.280 --> 0:12:26.000 particular confirmation was not going to shift to the center 0:12:26.040 --> 0:12:27.640 of gravity on the course, It was not going to 0:12:27.800 --> 0:12:30.880 radically change the direction of the Court, and that the 0:12:31.040 --> 0:12:34.520 justice that Justice Brier was replaced him in. Justice Tudor 0:12:34.880 --> 0:12:37.559 was a very significant member of the Court, but he 0:12:37.760 --> 0:12:41.240 wasn't necessarily out on a limb all by himself where 0:12:41.520 --> 0:12:43.480 his departure was going to open up. Some gave him 0:12:43.480 --> 0:12:47.120 whole in the Court's jurisprudence, and if that's very much 0:12:47.160 --> 0:12:50.120 what this field like as well, where whoever President by 0:12:50.120 --> 0:12:52.400 the nominator, you know, I think will almost certainly sort 0:12:52.400 --> 0:12:55.360 of be to the left of Justice brier But of 0:12:55.400 --> 0:12:57.960 course that's not going to move the court because Justice 0:12:57.960 --> 0:13:01.160 Briar is no longer anywhere close to the center of gravity. 0:13:01.360 --> 0:13:03.720 And I think that's part of why, at least from 0:13:03.720 --> 0:13:05.840 where I'm stood in I don't think this is going 0:13:05.880 --> 0:13:09.360 to be as contentious a process as when Justice Kavanaugh 0:13:09.520 --> 0:13:13.080 was nominated to succeed Justice Kennedy or when Justice Barrett 0:13:13.120 --> 0:13:15.720 was nominated to succeed Justice Ginsborough, because the sticks June 0:13:15.720 --> 0:13:18.880 are just still very different. So how would you describe 0:13:18.920 --> 0:13:23.520 his legacy on the Court? Um? You know, I think 0:13:23.960 --> 0:13:26.280 much much the same way that I thought of like 0:13:26.400 --> 0:13:30.160 Justice stevens legacy when Justice steven stepped down in that 0:13:30.280 --> 0:13:33.160 you know, Justice Stevens famously was appointed by President Ford 0:13:33.240 --> 0:13:36.760 was a Republican, a lifelong Republican who, by the end 0:13:36.760 --> 0:13:39.119 of his career was one of the more solidly reliably 0:13:39.679 --> 0:13:42.240 liberal votes on the Court. And you know, Stevens, when 0:13:42.280 --> 0:13:44.840 he was asked in he said, I didn't move so 0:13:44.920 --> 0:13:48.040 much as the Court moved around UM. And I think, 0:13:48.080 --> 0:13:51.840 you know, there was not Um. There's a some play 0:13:51.880 --> 0:13:53.640 in that. I think, you know, Justice Stevens might have 0:13:53.640 --> 0:13:56.600 been a little bit exaggerated, but he wasn't totally exaggerated. 0:13:57.120 --> 0:13:59.000 And I really think, like when we look at Justice 0:13:59.040 --> 0:14:02.079 Briar's life, that's gonna be a big part of the story, 0:14:02.160 --> 0:14:06.280 like what might have been. Um, you know, if um, 0:14:06.440 --> 0:14:09.800 Hillary Clinton wins the election and we have a democratic 0:14:09.880 --> 0:14:12.360 majority on the Court for the first time since nineteen 0:14:13.760 --> 0:14:16.160 Justice Brier would have been an enormously important part of 0:14:16.160 --> 0:14:18.800 that story. Um. Right, He and Justice Ginsbrod would have 0:14:18.800 --> 0:14:21.600 been the senior liberals on the Court, UM, and therefore 0:14:21.680 --> 0:14:24.280 usually in control of the majority in divisive cases. So, 0:14:24.800 --> 0:14:27.440 you know, I think his legacy is going to be defined, 0:14:27.480 --> 0:14:29.760 at least in part by what could have been. I 0:14:29.760 --> 0:14:32.480 think his legacy will be defined by, you know, how 0:14:32.600 --> 0:14:35.920 much he sort of lived in the center while there 0:14:35.960 --> 0:14:39.040 was still a center to live in, alongside Justice Kennedy, 0:14:39.120 --> 0:14:41.720 Justice O'Connor, And I think because legacy would be defined 0:14:41.760 --> 0:14:45.600 by sort of an age gone by where having a 0:14:45.640 --> 0:14:49.000 pragmatic judge on the Court who thought that part of 0:14:49.040 --> 0:14:52.240 the job was to build consensus across the perceived dial 0:14:52.640 --> 0:14:54.760 was actually a feature and not a bug. You're going 0:14:54.840 --> 0:14:58.120 to have Briar, who's been on the Court for almost 0:14:58.160 --> 0:15:02.160 thirty years, being replaced by someone new and a black woman. 0:15:02.840 --> 0:15:06.120 How does that change the dynamic on the court and 0:15:06.800 --> 0:15:09.920 among the liberals on the court? Three women? Now the 0:15:09.960 --> 0:15:12.800 most significant thing it does, is it really I think 0:15:12.920 --> 0:15:15.280 elevates Justice Sodam I or that much further. But she 0:15:15.360 --> 0:15:18.280 now becomes not just perhaps the rhetorical leader of the 0:15:18.320 --> 0:15:21.080 liberal wing, but the senior member of the liberal wins. 0:15:21.200 --> 0:15:24.200 So when it comes to parcelong outdiscent, for example, in 0:15:24.200 --> 0:15:26.080 the high profile cases, you know that will fall to 0:15:26.120 --> 0:15:28.720 her as opposed to Justice Briar. But I also think 0:15:29.120 --> 0:15:32.000 that the other way it's going to change the dynamics is, 0:15:32.200 --> 0:15:35.280 you know, I think it is going to reflect yet 0:15:35.280 --> 0:15:38.760 a further generational change. One has to think that President 0:15:38.760 --> 0:15:41.200 Biden is going to appoint someone who is at the 0:15:41.240 --> 0:15:43.720 oldest in their early fifties. And so if that person 0:15:43.760 --> 0:15:46.160 serves for as long as Justice Briar serves, I mean 0:15:46.160 --> 0:15:48.160 the court is going to change again while they're on 0:15:48.200 --> 0:15:51.080 the court. So I think the internal dynamics will be 0:15:51.120 --> 0:15:53.080 harder for us to see. I think they will be 0:15:53.160 --> 0:15:57.320 most heavily felt among the three Democratic appointees and how 0:15:57.480 --> 0:16:01.160 they allocate their responsibility. Is there a June that the 0:16:01.360 --> 0:16:06.080 justice who replaces Justice prior might find her own mechanisms, 0:16:06.080 --> 0:16:09.280 her own ways of building consensus with some of her colleagues. 0:16:09.320 --> 0:16:12.240 On the other side, is a relationship between the new 0:16:12.280 --> 0:16:15.440 justice and justice corsets, for example, on criminal cases a 0:16:15.520 --> 0:16:18.000 possibility we'll have to see. But again, I mean, I 0:16:18.000 --> 0:16:21.600 think what really makes this whole process feel so different 0:16:21.760 --> 0:16:23.800 from the last couple of times we've been here is 0:16:23.840 --> 0:16:25.880 that these differences in the short term are going to 0:16:26.040 --> 0:16:29.440 just pale in comparison to the short term differences we 0:16:29.480 --> 0:16:32.640 saw between Kennedy and Kavanaugh, Guinsburg and Barrett. Of the 0:16:32.680 --> 0:16:35.920 list of replacements, does one stand out of the list 0:16:35.960 --> 0:16:39.520 of replacements, does one stand out? I don't know about one, June. 0:16:39.560 --> 0:16:41.480 I think there are two. From where I'm sit in 0:16:41.880 --> 0:16:47.000 Katangi Brown Jackson and Leandre Krueger are such compelling candidates 0:16:47.000 --> 0:16:49.600 in different ways and low though I am to bet 0:16:49.600 --> 0:16:52.920 on any particular candidates in this race, I would be 0:16:53.000 --> 0:16:54.560 very surprised if it wasn't one of those two. They're 0:16:54.560 --> 0:16:58.600 both fantastically qualified, They're both very smart, they're both highly 0:16:58.640 --> 0:17:01.480 regarded June. They had different backgrounds, They have different experience 0:17:01.560 --> 0:17:04.200 that Catani Brown Jackson was a district judge before she's 0:17:04.200 --> 0:17:07.400 an apelogige. She has trial experience. Leando Krueger before she's 0:17:07.440 --> 0:17:09.639 a California Supreme Court justice was a government lawyer. She 0:17:09.760 --> 0:17:12.320 worked in the executive press for the absol Regal Council. 0:17:12.440 --> 0:17:16.920 So I think there are hantilizing opportunities with both of them, 0:17:17.320 --> 0:17:19.480 and I think it's going to be a good problem 0:17:19.560 --> 0:17:21.840 for President Biden to have and trying to pick between 0:17:21.880 --> 0:17:24.440 them and the other names for being bandied about. Thanks 0:17:24.480 --> 0:17:28.040 so much, Steve, I always appreciate your insights. That's Professor 0:17:28.040 --> 0:17:33.520 Stephen Vladdock of the University of Texas Law School. The 0:17:33.600 --> 0:17:38.040 Supreme Court is passing on Oklahoma's aggressive attempt to topple 0:17:38.160 --> 0:17:43.920 the president on American Indian reservations and criminal justice established 0:17:43.920 --> 0:17:47.119 in the landmark case of mcgt va Oklahoma by a 0:17:47.160 --> 0:17:50.280 vote of five to four. The justices will not review 0:17:50.400 --> 0:17:53.879 the precedent established in McGirt, but will look at how 0:17:53.920 --> 0:17:58.000 the ruling applies to state prosecutions of non Indians. It 0:17:58.040 --> 0:18:01.240 will be one of the last argued case of the term. 0:18:01.280 --> 0:18:04.679 Both Indian tribes and the state of Oklahoma applauded the 0:18:04.680 --> 0:18:08.080 court's order On Friday. Joree me Is Bloomberg Law reporter 0:18:08.240 --> 0:18:13.000 Jordan Reuben. For those who don't remember McGirt, tell us 0:18:13.080 --> 0:18:17.119 what that landmark decision of mcg the Oklahoma stands for. 0:18:18.200 --> 0:18:22.800 So mcgert for Oklahoma stands for the proposition that the 0:18:22.880 --> 0:18:26.399 Skokie Creek Reservation, which is the reservation and issue in 0:18:26.440 --> 0:18:30.080 that case, had never been disbanded by Congress. That reservations 0:18:30.119 --> 0:18:33.560 still stands. It still exists, and by implications, so do 0:18:34.119 --> 0:18:38.719 several other reservations in the eastern half of Oklahoma. And 0:18:38.720 --> 0:18:42.920 that arose in a criminal case by a defendant who 0:18:43.000 --> 0:18:46.280 was challenging his conviction. He was Native American. He said 0:18:46.320 --> 0:18:50.480 the state of Oklahoma didn't have jurisdiction to charge him 0:18:50.520 --> 0:18:53.080 for a crime that took place on the reservation. And 0:18:53.119 --> 0:18:56.160 so to answer the question, the justices had to take 0:18:56.160 --> 0:18:59.400 a look at whether that reservation still in fact existed, 0:18:59.480 --> 0:19:02.640 which made the court go back and look at treaties 0:19:02.920 --> 0:19:05.800 and interpret those. And so the court said that the 0:19:05.840 --> 0:19:09.560 reservations do still in fact exist, and so that's what 0:19:09.600 --> 0:19:13.960 wounds up having this transformative effect on criminal justice and 0:19:14.000 --> 0:19:18.120 potentially some other areas of the law in Oklahoma. Remind 0:19:18.240 --> 0:19:21.520 us about the reaction to the ruling from the State 0:19:21.520 --> 0:19:25.359 of Oklahoma and the Indian tribes in Oklahoma. Sure so, 0:19:25.480 --> 0:19:28.720 from the state's perspective, and this was true. Heading into 0:19:29.040 --> 0:19:31.240 the decision, the state was warning that there would be 0:19:31.440 --> 0:19:35.040 chaos breaking out if the state didn't have jurisdictions to 0:19:35.160 --> 0:19:38.280 prosecute certain crimes, and that jurisdiction would then fall to 0:19:38.840 --> 0:19:42.400 tribes and the federal government, which the state said wasn't 0:19:42.400 --> 0:19:44.600 equipped at all to handle those things. That's what the 0:19:44.640 --> 0:19:46.960 state was saying ahead of the argument, And so then 0:19:47.040 --> 0:19:51.080 after the state lost the decision, it essentially reiterated those 0:19:51.080 --> 0:19:54.520 state arguments, saying, telling the court, Hey, all these things 0:19:54.560 --> 0:19:56.320 that we warned you about that we're going to happen, 0:19:56.640 --> 0:19:59.080 those in fact did happen, and now we want you 0:19:59.240 --> 0:20:03.840 to fix it by reversing the decision. The tribes those 0:20:03.840 --> 0:20:07.720 say that that's not true, that that narrative of chaos 0:20:07.840 --> 0:20:10.320 is not what's playing out in Oklahoma, and that to 0:20:10.359 --> 0:20:13.800 the extent there is this chaos, it's because of the 0:20:13.880 --> 0:20:17.840 state challenging them a gert decision itself, and not cooperating. 0:20:17.880 --> 0:20:20.439 So there's a circular effect to all of this. But 0:20:20.520 --> 0:20:24.680 the state and the tribes really aren't totally opposite ends 0:20:24.800 --> 0:20:27.240 of the spectrum. And when I say the state and 0:20:27.280 --> 0:20:30.480 the tribes, talking about the governor Stitch, who has been 0:20:30.560 --> 0:20:34.320 challenging this, there has been cooperation between the tribes and 0:20:34.840 --> 0:20:38.840 different state officials on the lower end, but at the 0:20:38.920 --> 0:20:41.280 higher end of it from the governor's office and the tribes, 0:20:41.320 --> 0:20:45.080 it's really been a serious battle there. So the State 0:20:45.160 --> 0:20:49.720 of Oklahoma asked the Supreme Court to reverse a decision 0:20:49.760 --> 0:20:54.120 it just handed down in that that's set a precedent 0:20:54.200 --> 0:20:57.679 for American Indian reservations. That's right, and so it's a 0:20:57.680 --> 0:21:01.639 pretty bold request. We hadn't really seen anything quite like this. 0:21:01.840 --> 0:21:06.280 It's obviously not unprecedented for the Court to overturn its precedent, 0:21:06.400 --> 0:21:10.399 but this request was unusual for how quickly it was 0:21:10.440 --> 0:21:13.280 being made, and being made obviously because of a change 0:21:13.280 --> 0:21:16.639 in composition on the court, with Justice Ginsburg having been 0:21:16.920 --> 0:21:19.760 in the five four majority against the state and then 0:21:19.800 --> 0:21:23.640 her dying and being replaced by Ammy Coney Barrett. Were 0:21:23.680 --> 0:21:26.920 there more than thirty petitions to the court, There were, 0:21:26.960 --> 0:21:29.119 and they were all raising this same issue, and so 0:21:29.200 --> 0:21:32.320 the state was raising this question of attempting to try 0:21:32.320 --> 0:21:36.199 and overturn the decision in as you said, over thirty 0:21:36.240 --> 0:21:39.560 petitions to the court, most of which were denied today 0:21:39.640 --> 0:21:44.000 on Monday, January denied in terms of the question of 0:21:44.040 --> 0:21:48.040 whether to overturned the precedent, But the Court did grant 0:21:48.080 --> 0:21:52.679