1 00:00:00,640 --> 00:00:05,840 Speaker 1: You're listening to Bloomberg Law with June Grasso from Bloomberg Radio. 2 00:00:06,320 --> 00:00:09,280 Speaker 1: In some ways, the cases of the Faithless Electors may 3 00:00:09,280 --> 00:00:13,080 Speaker 1: have been the most entertaining of Supreme Court cases this term. 4 00:00:13,119 --> 00:00:17,080 Speaker 1: It started oral arguments with Justice Clarence Thomas wondering if 5 00:00:17,079 --> 00:00:19,479 Speaker 1: an elector could vote for a character from the Lord 6 00:00:19,480 --> 00:00:23,840 Speaker 1: of the Rings. The elector who had promised to vote 7 00:00:23,880 --> 00:00:28,040 Speaker 1: for the winning candidate could suddenly say, you know, I'm 8 00:00:28,080 --> 00:00:31,760 Speaker 1: going to vote for Froto Wagons, and that's I really 9 00:00:31,840 --> 00:00:35,519 Speaker 1: like Froto Wagons, and ended with a decision by Justice 10 00:00:35,520 --> 00:00:42,240 Speaker 1: Elena Kagan that told the history of presidential electors. Alexander 11 00:00:42,320 --> 00:00:49,880 Speaker 1: Hamilton's my name is Alexander Hamilton. There's a million things 12 00:00:49,920 --> 00:00:55,880 Speaker 1: I haven't done just to just including references to the 13 00:00:55,920 --> 00:00:59,440 Speaker 1: Broadway hit Hamilton's and the TV show v The Court 14 00:00:59,520 --> 00:01:02,760 Speaker 1: rule that's states can require members of the Electoral College 15 00:01:02,840 --> 00:01:06,400 Speaker 1: to vote for the presidential candidate who won the statewide balloting. 16 00:01:06,760 --> 00:01:09,840 Speaker 1: Although a faithless elector has never affected the outcome of 17 00:01:09,840 --> 00:01:13,800 Speaker 1: a presidential election, the unanimous decisions are important in giving 18 00:01:13,800 --> 00:01:17,680 Speaker 1: a measure of predictability to our nation's complex election system. 19 00:01:17,880 --> 00:01:20,959 Speaker 1: Joining me is elections law expert Richard Braffald, a professor 20 00:01:21,040 --> 00:01:24,160 Speaker 1: Columbia Law School, which does this decision seem to take 21 00:01:24,160 --> 00:01:26,840 Speaker 1: care of the concerns that were raised by the justices 22 00:01:26,920 --> 00:01:30,680 Speaker 1: during the oral arguments. I think the justices, many of them, 23 00:01:30,680 --> 00:01:34,480 Speaker 1: were concerned about potential chaos if the states could not 24 00:01:34,680 --> 00:01:37,479 Speaker 1: make sure that electors would cast the votes that they 25 00:01:37,480 --> 00:01:40,600 Speaker 1: were elected to cast. There is the constitutional argument that 26 00:01:40,840 --> 00:01:43,399 Speaker 1: the original intent of the framers would actually have the 27 00:01:43,440 --> 00:01:47,960 Speaker 1: electors used their judgment. But our practice since almost the 28 00:01:47,960 --> 00:01:50,400 Speaker 1: beginning of the country has been for the electors to 29 00:01:50,560 --> 00:01:53,360 Speaker 1: vote the positions that they were chosen to take. Presidential 30 00:01:53,360 --> 00:01:57,040 Speaker 1: elections are in practice popular elections, even if we still 31 00:01:57,080 --> 00:01:59,840 Speaker 1: have to use the electoral college. I think the justices 32 00:02:00,120 --> 00:02:03,240 Speaker 1: were showing that made sense to have the states be 33 00:02:03,320 --> 00:02:06,440 Speaker 1: able to require the electors to cast the votes that 34 00:02:06,480 --> 00:02:09,440 Speaker 1: they were chosen to cast in the majority opinion. How 35 00:02:09,480 --> 00:02:13,080 Speaker 1: did Elena kaig In frame it? The Constitution doesn't address this. 36 00:02:13,639 --> 00:02:16,040 Speaker 1: Did she do a constitutional argument, did she do a 37 00:02:16,080 --> 00:02:21,240 Speaker 1: practical argument? She really did a combination of classical text 38 00:02:21,360 --> 00:02:24,440 Speaker 1: and history, text, history and practice. I mean, the text 39 00:02:24,480 --> 00:02:28,079 Speaker 1: doesn't really address this. The text basically directs the states 40 00:02:28,120 --> 00:02:31,760 Speaker 1: to select the electors. It doesn't say anything about any 41 00:02:31,919 --> 00:02:34,720 Speaker 1: rights of the electors might have, And then she traces 42 00:02:34,760 --> 00:02:38,839 Speaker 1: the history which shows that really from maybe from sevent on, 43 00:02:39,360 --> 00:02:43,240 Speaker 1: it was expected that electors would vote for the person 44 00:02:43,320 --> 00:02:45,720 Speaker 1: they were chosen to vote for. So I think she 45 00:02:45,800 --> 00:02:48,560 Speaker 1: basically said that this was something that the states were 46 00:02:48,639 --> 00:02:51,720 Speaker 1: free to do. There were no counter precedents. There was 47 00:02:51,760 --> 00:02:55,320 Speaker 1: one Supreme Court Presidents in the nineteen fifties which upheld 48 00:02:55,520 --> 00:02:59,040 Speaker 1: the authority of states to require the electors to take 49 00:02:59,080 --> 00:03:01,600 Speaker 1: pledges that they would vote the way they were chosen 50 00:03:01,639 --> 00:03:03,680 Speaker 1: to vote, but there was no punishment in that case. 51 00:03:03,880 --> 00:03:06,760 Speaker 1: So I think she basically had text practice or history, 52 00:03:07,240 --> 00:03:09,880 Speaker 1: and maybe a sense of in effect, we have reached 53 00:03:09,880 --> 00:03:13,280 Speaker 1: the stage now where the electors are really a part 54 00:03:13,280 --> 00:03:16,959 Speaker 1: of the process of popular election. And in her opinion, 55 00:03:17,200 --> 00:03:20,720 Speaker 1: she referenced the HBO show Veep as well as the 56 00:03:20,760 --> 00:03:24,720 Speaker 1: Broadway musical Hamilton's Correct Yes, So she seemed to have 57 00:03:24,880 --> 00:03:27,320 Speaker 1: a little bit of fun with it, right. She is 58 00:03:27,360 --> 00:03:31,079 Speaker 1: a very lively writer. She often puts in colloquial things 59 00:03:31,120 --> 00:03:34,880 Speaker 1: popular things. She is a lively and readable writer, and 60 00:03:35,000 --> 00:03:38,320 Speaker 1: sometimes find myself laughing out loud when I read something 61 00:03:38,360 --> 00:03:41,080 Speaker 1: of her. She had an opinion recently dealing with the 62 00:03:41,280 --> 00:03:44,320 Speaker 1: power of Congress to limit the president to just cause removal, 63 00:03:44,360 --> 00:03:47,120 Speaker 1: which the court struck down in that case. And one 64 00:03:47,160 --> 00:03:49,440 Speaker 1: of the arguments in the majority in that case was 65 00:03:49,480 --> 00:03:51,560 Speaker 1: that this had never been done before, or it was 66 00:03:51,680 --> 00:03:54,400 Speaker 1: very rarely done before. And she said that really shouldn't 67 00:03:54,440 --> 00:03:58,360 Speaker 1: matter the necessary improper clauses, not the rinse and repeat clause. 68 00:03:58,680 --> 00:04:03,240 Speaker 1: And she adds a lot of fairly colloquial, casual funny things. 69 00:04:03,280 --> 00:04:06,680 Speaker 1: There are more faithless electors in the sixteen presidential election 70 00:04:06,720 --> 00:04:10,040 Speaker 1: than ever before in history. But how much impact will 71 00:04:10,080 --> 00:04:14,240 Speaker 1: this decision really have going forward? As you point out, 72 00:04:14,280 --> 00:04:17,480 Speaker 1: I mean, the pace of electors are very rare. If 73 00:04:17,520 --> 00:04:20,080 Speaker 1: you go back for the preceding center. I was looking 74 00:04:20,120 --> 00:04:24,279 Speaker 1: at this between nineteen sixteen and twenty twelves, there were 75 00:04:24,320 --> 00:04:28,120 Speaker 1: exactly nine faithless electors, and that was in twenty five elections, 76 00:04:28,160 --> 00:04:32,040 Speaker 1: and there were five electors or more in every one 77 00:04:32,080 --> 00:04:35,240 Speaker 1: of those elections. So it's a very rare thing. There 78 00:04:35,279 --> 00:04:38,520 Speaker 1: were a sizeable number in sixteen, and I think it 79 00:04:38,600 --> 00:04:41,240 Speaker 1: reflected a lot of the discontent in the country with 80 00:04:41,320 --> 00:04:44,760 Speaker 1: the choices that people had. It's highly unlikely we were 81 00:04:44,760 --> 00:04:46,800 Speaker 1: going to have a constitution with crisis due to faith 82 00:04:46,800 --> 00:04:50,360 Speaker 1: with electors. But I think the value is more symbolic 83 00:04:50,400 --> 00:04:53,120 Speaker 1: than anything else. But it does kind of confirm the 84 00:04:53,200 --> 00:04:56,400 Speaker 1: idea that this is a popular election in Italy. It's 85 00:04:56,440 --> 00:04:59,160 Speaker 1: a popular election by state, which is why we can 86 00:04:59,160 --> 00:05:02,680 Speaker 1: still get a gap between the national popular vote and 87 00:05:02,720 --> 00:05:05,720 Speaker 1: the national electoral vote. The president is popular upon a 88 00:05:05,800 --> 00:05:07,960 Speaker 1: state by state basis. So it is that kind of 89 00:05:07,960 --> 00:05:11,320 Speaker 1: a confirmation that whatever the intentions of the Framers were 90 00:05:11,360 --> 00:05:14,680 Speaker 1: in seven, we have moved in a more small d 91 00:05:14,839 --> 00:05:19,560 Speaker 1: democratic direction. Advocates for allowing faith as electors to so 92 00:05:19,680 --> 00:05:22,440 Speaker 1: called go rogue said it would be a back doorway 93 00:05:22,640 --> 00:05:27,320 Speaker 1: for states to add qualifications for presidential candidates, such as 94 00:05:27,520 --> 00:05:31,760 Speaker 1: voting only for those who release taxes. Did that come 95 00:05:31,839 --> 00:05:34,560 Speaker 1: up in the opinions? Justice Kagan takes the position that 96 00:05:34,600 --> 00:05:37,039 Speaker 1: since the states have the power to write the rules 97 00:05:37,080 --> 00:05:40,120 Speaker 1: for the selection of the electors, they can also imposed conditions. 98 00:05:40,200 --> 00:05:42,159 Speaker 1: But then she dropped the footnotes and says what the 99 00:05:42,160 --> 00:05:45,480 Speaker 1: states can't do is imposed conditions that would violate another 100 00:05:45,520 --> 00:05:49,719 Speaker 1: constitutional norm, or adding a new qualification to the president. 101 00:05:50,040 --> 00:05:53,040 Speaker 1: You could read that as aimed at knocking out the 102 00:05:53,040 --> 00:05:55,240 Speaker 1: idea that the States could for imposed the requirement of 103 00:05:55,320 --> 00:05:58,120 Speaker 1: its closed as a qualification for being president. That's where 104 00:05:58,160 --> 00:06:02,560 Speaker 1: to the fault of Columbia Law School. The Subreme Court 105 00:06:02,600 --> 00:06:04,920 Speaker 1: delivered a ruling in a criminal case that could have 106 00:06:05,040 --> 00:06:09,680 Speaker 1: vast implications for Oklahoma's criminal and civil jurisdiction, as well 107 00:06:09,720 --> 00:06:12,640 Speaker 1: as tribal sovereignty in the eastern half of that state. 108 00:06:13,120 --> 00:06:16,800 Speaker 1: Justice Neil gorsts joined the court's four liberal appointees in 109 00:06:16,800 --> 00:06:19,520 Speaker 1: a five to four decision that found that Congress had 110 00:06:19,560 --> 00:06:23,240 Speaker 1: granted the Creek Nation a reservation and the United States 111 00:06:23,240 --> 00:06:27,480 Speaker 1: had to keep its promises. In the majority opinion, Gorstge wrote, 112 00:06:27,920 --> 00:06:31,360 Speaker 1: because Congress has not said otherwise, we hold the government 113 00:06:31,360 --> 00:06:34,800 Speaker 1: to its word. Joining me is Jordan Reuben Bloomberg Law 114 00:06:34,920 --> 00:06:39,039 Speaker 1: Legal Editor. This case is about Indian Land in Oklahoma, 115 00:06:39,200 --> 00:06:43,000 Speaker 1: but it's actually a criminal case. Explain how it went 116 00:06:43,120 --> 00:06:46,000 Speaker 1: from criminal case to this broader case. So the case 117 00:06:46,040 --> 00:06:49,400 Speaker 1: involves a man named Jim c mcgurt, and he's a 118 00:06:49,400 --> 00:06:53,880 Speaker 1: member of the Seminole Nation. So he was convicted of 119 00:06:53,920 --> 00:06:57,800 Speaker 1: some very serious crimes and was serving a life sentence 120 00:06:57,880 --> 00:07:01,520 Speaker 1: in state prison. However, he raised an argument on appeal, 121 00:07:02,000 --> 00:07:04,640 Speaker 1: saying that because he is an Indian and his crime 122 00:07:04,680 --> 00:07:08,040 Speaker 1: took place in what he said was Indian country, that 123 00:07:08,279 --> 00:07:12,200 Speaker 1: the state actually didn't have jurisdiction to prosecute him, because 124 00:07:12,600 --> 00:07:16,160 Speaker 1: jurisdiction for such a prosecution would only fall to the 125 00:07:16,200 --> 00:07:19,320 Speaker 1: federal government under federal law. And so that wind up 126 00:07:19,360 --> 00:07:22,480 Speaker 1: raising the question in turn of whether where he actually 127 00:07:22,520 --> 00:07:26,120 Speaker 1: committed the crime was in fact, quote unquote Indian country. 128 00:07:26,160 --> 00:07:29,160 Speaker 1: And so that's what brought into question the status of 129 00:07:29,200 --> 00:07:32,840 Speaker 1: the Creek Reservation, which is where mcgret committed his crime, 130 00:07:32,960 --> 00:07:36,120 Speaker 1: and the question of whether the Creek Reservation still exists 131 00:07:36,240 --> 00:07:40,920 Speaker 1: today from its nineteenth century treaty origins. So the state 132 00:07:41,080 --> 00:07:44,640 Speaker 1: said it wasn't legally a reservation in the first place, 133 00:07:44,760 --> 00:07:48,080 Speaker 1: and even if it was, Congress has since taken away 134 00:07:48,120 --> 00:07:52,760 Speaker 1: that status, explained the state's argument, right, So there's this 135 00:07:52,920 --> 00:07:56,840 Speaker 1: threshold question of whether there's even a reservation in the 136 00:07:56,880 --> 00:08:00,480 Speaker 1: first place, and then if there was, whether Congress has 137 00:08:00,720 --> 00:08:04,360 Speaker 1: done something called disestablishing the reservation. It's a strict test 138 00:08:04,440 --> 00:08:07,440 Speaker 1: where if a state argues that a reservation has been 139 00:08:07,560 --> 00:08:10,720 Speaker 1: essentially undone, there needs to be a clear statement from 140 00:08:10,760 --> 00:08:13,960 Speaker 1: Congress showing that that happened. And so what happened in 141 00:08:13,960 --> 00:08:18,160 Speaker 1: this case, the majority opinion, written by Justice Gorsich said, 142 00:08:18,600 --> 00:08:21,320 Speaker 1: in the first instance, it was obvious that the Creek 143 00:08:21,320 --> 00:08:24,200 Speaker 1: Reservation was a reservation in the first place. It even 144 00:08:24,320 --> 00:08:27,480 Speaker 1: used the word reservation in the treaty to discuss it. 145 00:08:27,840 --> 00:08:30,640 Speaker 1: And Gorst wound up going to say in the opinion 146 00:08:30,680 --> 00:08:34,880 Speaker 1: that Congress has not clearly disestablished the reservation. Even if 147 00:08:35,559 --> 00:08:39,120 Speaker 1: the government did, at various points in history actually want 148 00:08:39,360 --> 00:08:42,800 Speaker 1: the reservation to be disestablished, the government was never actually 149 00:08:42,840 --> 00:08:46,559 Speaker 1: successful in doing that, and so technically, as a legal matter, 150 00:08:46,840 --> 00:08:51,200 Speaker 1: the reservations still exists today. Corse, it said, the government's 151 00:08:51,240 --> 00:08:54,040 Speaker 1: dire warnings are just that, and not a license for 152 00:08:54,120 --> 00:08:57,640 Speaker 1: us to disregard the law. So tell us about the 153 00:08:57,679 --> 00:09:02,920 Speaker 1: government's dire warnings. So the government was warning that Ismagert's 154 00:09:03,000 --> 00:09:05,680 Speaker 1: argument is correct, that him and a bunch of other 155 00:09:05,720 --> 00:09:09,040 Speaker 1: people who are convicted under state law in state court 156 00:09:09,040 --> 00:09:12,440 Speaker 1: will wind up having their convictions overturned. And so there 157 00:09:12,440 --> 00:09:15,000 Speaker 1: were big consequences as far as the state was concerned 158 00:09:15,000 --> 00:09:17,680 Speaker 1: when it comes to criminal law. And then even beyond that, 159 00:09:17,840 --> 00:09:20,680 Speaker 1: if it turns out that the Creek Reservation persists today, 160 00:09:21,040 --> 00:09:23,720 Speaker 1: and if in turn, other reservations in the eastern half 161 00:09:23,720 --> 00:09:26,880 Speaker 1: of the state also are still reservations then that could 162 00:09:26,920 --> 00:09:31,280 Speaker 1: have the consequences for civil regulatory and tax enforcement as well. 163 00:09:31,400 --> 00:09:34,439 Speaker 1: So the state's argument even went beyond the criminal sphere 164 00:09:34,440 --> 00:09:39,360 Speaker 1: and into civil tax and regulatory as well. During the 165 00:09:39,480 --> 00:09:44,000 Speaker 1: argument that justices were asking questions about how this would 166 00:09:44,040 --> 00:09:49,360 Speaker 1: affect adoptions and business disputes. Do we know how this 167 00:09:49,520 --> 00:09:53,520 Speaker 1: will affect that The ruling here focused on the criminal side, 168 00:09:53,880 --> 00:09:56,640 Speaker 1: there was it actually an interesting statement that came out 169 00:09:56,679 --> 00:09:59,400 Speaker 1: after the ruling, a joint statement from the state and 170 00:09:59,480 --> 00:10:01,720 Speaker 1: also the tribes in the eastern half of the state 171 00:10:02,080 --> 00:10:04,920 Speaker 1: talking about how they were going to work together going 172 00:10:04,960 --> 00:10:08,880 Speaker 1: forward to sort out jurisdictional issues and enforce public safety. 173 00:10:09,000 --> 00:10:11,080 Speaker 1: So it was an interesting thing, not the sort of 174 00:10:11,080 --> 00:10:13,240 Speaker 1: thing that you see every day in terms of two 175 00:10:13,320 --> 00:10:15,680 Speaker 1: sides of a dispute coming out with a joint statement 176 00:10:15,800 --> 00:10:19,040 Speaker 1: together after the case. Of course, the case was mcgret 177 00:10:19,040 --> 00:10:22,480 Speaker 1: against Oklahoma, but you had the Creek Nation UH and 178 00:10:22,559 --> 00:10:26,360 Speaker 1: other tribal interests supporting McGirt at the High Court. So 179 00:10:26,400 --> 00:10:29,480 Speaker 1: this statement that came out after was from Oklahoma and 180 00:10:29,520 --> 00:10:34,319 Speaker 1: then the tribes. Of course McGirt and other state defendants 181 00:10:34,320 --> 00:10:36,720 Speaker 1: who are convicted in state court could be retried in 182 00:10:36,800 --> 00:10:39,600 Speaker 1: federal court, which was an argument that mcgart and his 183 00:10:39,640 --> 00:10:42,600 Speaker 1: supporters were making as to why there wouldn't really be 184 00:10:42,720 --> 00:10:45,679 Speaker 1: this wide disruption that the state was claiming because people 185 00:10:45,800 --> 00:10:48,480 Speaker 1: could just be retried in a different court. It's not 186 00:10:48,520 --> 00:10:51,200 Speaker 1: like they would just be let loose on the streets forever. 187 00:10:51,920 --> 00:10:55,240 Speaker 1: There might be statute of limitations problems with some of 188 00:10:55,240 --> 00:10:59,839 Speaker 1: the cases, right. There could definitely be procedural obstacles to 189 00:11:00,040 --> 00:11:03,280 Speaker 1: be trying some defendants, and there could be practical hurdles too. 190 00:11:03,400 --> 00:11:05,800 Speaker 1: You know, if it's a case from very long ago, 191 00:11:06,080 --> 00:11:09,200 Speaker 1: witnesses could be dead, their memories could be faded, and 192 00:11:09,280 --> 00:11:13,040 Speaker 1: so even if legally a lot of these defendants could 193 00:11:13,080 --> 00:11:16,839 Speaker 1: simply be retried as a practical matter, that won't necessarily 194 00:11:16,920 --> 00:11:20,920 Speaker 1: be the case. But the point in Gorsuch's opinion was 195 00:11:21,440 --> 00:11:24,240 Speaker 1: those consequences be them as they may. That's really not 196 00:11:24,280 --> 00:11:26,719 Speaker 1: the issue in the case. The issue is the discrete 197 00:11:26,800 --> 00:11:31,240 Speaker 1: legal question of whether the reservation has been disestablished, and 198 00:11:31,280 --> 00:11:34,360 Speaker 1: the answer to that question that the majority said it 199 00:11:34,440 --> 00:11:37,920 Speaker 1: was clearly no. The reservation still stands today. So does 200 00:11:37,960 --> 00:11:42,160 Speaker 1: this mean that any Indian who was convicted by the 201 00:11:42,240 --> 00:11:47,040 Speaker 1: state of an offense on reservation land can now apply 202 00:11:47,120 --> 00:11:51,400 Speaker 1: to have that reversed. So, as always happens in these cases, 203 00:11:51,520 --> 00:11:54,520 Speaker 1: there may be further litigation testing the limits of it. 204 00:11:54,559 --> 00:11:57,640 Speaker 1: But they're certainly going to be the challenges brought, and 205 00:11:57,720 --> 00:12:00,360 Speaker 1: so that's something that the state is we're it about. 206 00:12:00,360 --> 00:12:03,040 Speaker 1: And even the defense conceded that there certainly could be 207 00:12:03,080 --> 00:12:06,280 Speaker 1: convictions that are challenged, they argue over really how many 208 00:12:06,400 --> 00:12:09,360 Speaker 1: are in question, And even though the state was warning 209 00:12:09,400 --> 00:12:11,200 Speaker 1: that a lot of convictions are going to wind up 210 00:12:11,240 --> 00:12:14,240 Speaker 1: being overturned, of the state very may well wind up 211 00:12:14,480 --> 00:12:18,720 Speaker 1: challenging those convictions being overturned now that the litigation is 212 00:12:18,760 --> 00:12:21,199 Speaker 1: on sort of a new terrain, So as always, it's 213 00:12:21,200 --> 00:12:23,560 Speaker 1: sort of an open question about exactly how many people 214 00:12:23,600 --> 00:12:26,920 Speaker 1: are affected. But certainly there are going to be cases 215 00:12:26,920 --> 00:12:30,040 Speaker 1: that wind up getting overturned as a result of this ruling. 216 00:12:30,080 --> 00:12:32,959 Speaker 1: And then the question, as we're discussing, is whether they 217 00:12:32,960 --> 00:12:35,880 Speaker 1: do wind up getting retried in federal court or what 218 00:12:37,000 --> 00:12:40,160 Speaker 1: So does McGirt get released now or do they does 219 00:12:40,200 --> 00:12:42,559 Speaker 1: it have to go back to a lower court. So 220 00:12:43,679 --> 00:12:46,480 Speaker 1: the question is going to wind up going back and 221 00:12:46,480 --> 00:12:48,440 Speaker 1: there will be a question of whether he winds up 222 00:12:48,440 --> 00:12:51,760 Speaker 1: getting retried on the the federal level. I don't think 223 00:12:51,800 --> 00:12:54,440 Speaker 1: it's going to be a situation of him just getting 224 00:12:54,760 --> 00:12:57,800 Speaker 1: released out onto the street. And even if he even 225 00:12:57,840 --> 00:13:00,240 Speaker 1: if he did, the federal government may well will be 226 00:13:00,280 --> 00:13:02,840 Speaker 1: able to pick him up right there. That's something that 227 00:13:02,880 --> 00:13:07,319 Speaker 1: does happen sometimes when there's transfer between jurisdictions. So as 228 00:13:07,440 --> 00:13:11,479 Speaker 1: mcgarrett himself, even though he won the case, he very 229 00:13:11,480 --> 00:13:14,520 Speaker 1: he very may well wind up still spending the rest 230 00:13:14,520 --> 00:13:19,320 Speaker 1: of his life in prison anyway. And Chief Justice John Roberts, 231 00:13:19,440 --> 00:13:24,080 Speaker 1: very busy today wrote the discent what was his descent about? 232 00:13:25,160 --> 00:13:27,959 Speaker 1: This descent mirror mirrored the state's concerns in a lot 233 00:13:28,000 --> 00:13:31,720 Speaker 1: of ways, worrying about the consequences of the decision, saying 234 00:13:31,760 --> 00:13:35,760 Speaker 1: that the majority really gave it short shrift and wasn't 235 00:13:35,800 --> 00:13:39,240 Speaker 1: taking the state's concerns seriously enough. And as to the 236 00:13:39,520 --> 00:13:43,880 Speaker 1: legal question, Roberts also agreed with the State that the 237 00:13:43,920 --> 00:13:48,160 Speaker 1: government's actions that it was taken against the reservation and 238 00:13:48,160 --> 00:13:51,760 Speaker 1: the Creek Nation really amounted to the Creek Reservation not 239 00:13:51,960 --> 00:13:55,680 Speaker 1: legally existing anymore. So, the descent and the majority really 240 00:13:55,720 --> 00:13:58,560 Speaker 1: both disagreed as to the legal question and as to 241 00:13:58,640 --> 00:14:01,760 Speaker 1: the consequences claim as well. Now I want to ask 242 00:14:01,800 --> 00:14:05,480 Speaker 1: a fact question because I've read that this means that 243 00:14:05,640 --> 00:14:10,760 Speaker 1: nearly half of Oklahoma, eastern half is reservation land. What 244 00:14:10,920 --> 00:14:14,120 Speaker 1: is it now? I mean, do the reservations constitute that 245 00:14:14,200 --> 00:14:17,600 Speaker 1: part of the land. So a little bit of background 246 00:14:17,600 --> 00:14:21,080 Speaker 1: explanation is necessary to explain that. So, the Creek Nation, 247 00:14:21,160 --> 00:14:23,520 Speaker 1: which was the land that was an issue in this case, 248 00:14:23,720 --> 00:14:26,560 Speaker 1: is one of the five tribes that were marched west 249 00:14:26,720 --> 00:14:30,200 Speaker 1: on the Trail of Tiers back in the eighteen thirties. 250 00:14:30,240 --> 00:14:32,240 Speaker 1: And so the Creek, as well as for other tribes 251 00:14:32,440 --> 00:14:36,400 Speaker 1: which had similar arrangements, all had treaties with the government 252 00:14:36,440 --> 00:14:38,840 Speaker 1: and they wound up in the eastern part of the state. 253 00:14:38,920 --> 00:14:42,920 Speaker 1: And so the government's argument here the government was concerned 254 00:14:42,960 --> 00:14:45,560 Speaker 1: that a wind for the Creek would then lead to 255 00:14:46,040 --> 00:14:49,680 Speaker 1: similar findings as to those other tribes as well, saying 256 00:14:49,680 --> 00:14:52,640 Speaker 1: that their reservations also still exists. So it's sort of 257 00:14:52,680 --> 00:14:57,160 Speaker 1: a two step process. As for now, it's technically after 258 00:14:57,240 --> 00:14:59,920 Speaker 1: this decision, only the Creek reservation, which has still been 259 00:15:00,080 --> 00:15:03,680 Speaker 1: firmed by the court as still being quote unquote Indian land, 260 00:15:04,200 --> 00:15:07,760 Speaker 1: as to the other half. As to the remaining four 261 00:15:07,800 --> 00:15:10,760 Speaker 1: of those tribes. Certainly the logic of that may well 262 00:15:10,800 --> 00:15:13,960 Speaker 1: apply to that case, but as a technical matter, there 263 00:15:13,960 --> 00:15:18,320 Speaker 1: could still potentially be further litigation or legislation or further 264 00:15:18,400 --> 00:15:21,680 Speaker 1: disputes as to the exact status of those lands. But 265 00:15:21,720 --> 00:15:25,320 Speaker 1: certainly the implication of it is essentially that the eastern 266 00:15:25,360 --> 00:15:29,960 Speaker 1: half of Oklahoma would be technically still a reservation if 267 00:15:30,000 --> 00:15:33,000 Speaker 1: that same logic from today's opinion is applied to the 268 00:15:33,000 --> 00:15:35,160 Speaker 1: rest of the tribes as well as it was applied 269 00:15:35,200 --> 00:15:39,400 Speaker 1: to the Creek. Did the justices make a decision in 270 00:15:39,720 --> 00:15:44,400 Speaker 1: the other case criminal case Sharply Murphy and so last 271 00:15:44,480 --> 00:15:47,680 Speaker 1: term the justices tried to decide this case, but it 272 00:15:47,760 --> 00:15:50,960 Speaker 1: was a case where Justice course which was recused because 273 00:15:51,240 --> 00:15:53,840 Speaker 1: because it came from the Tenth Circuit Court of Appeals, 274 00:15:53,880 --> 00:15:57,320 Speaker 1: where he sat before reaching the Supreme Court, so he 275 00:15:57,400 --> 00:15:59,680 Speaker 1: recused himself from that one. And the court wound up 276 00:16:00,040 --> 00:16:02,760 Speaker 1: deadlocking presumably four to four on the case because they 277 00:16:02,760 --> 00:16:05,240 Speaker 1: couldn't reach a decision, And so that case was on 278 00:16:05,360 --> 00:16:08,280 Speaker 1: hold while the Jim c. Mcgret case was playing out. 279 00:16:08,400 --> 00:16:11,680 Speaker 1: And so now, as happens often when there's a Supreme 280 00:16:11,680 --> 00:16:14,560 Speaker 1: Court ruling and other decisions are sort of on hold. 281 00:16:14,880 --> 00:16:17,920 Speaker 1: Now that mcgret won, the Supreme Court issued essentially a 282 00:16:17,960 --> 00:16:22,440 Speaker 1: summary decision saying that Murphy wins too, and sent his 283 00:16:22,840 --> 00:16:25,840 Speaker 1: case back as well. In that case, that Murphy had 284 00:16:25,880 --> 00:16:30,440 Speaker 1: actually one prior so it was just affirming the previous 285 00:16:30,560 --> 00:16:32,880 Speaker 1: ruling for him, as opposed to this case where mcgret 286 00:16:32,920 --> 00:16:36,600 Speaker 1: lost at the previous court and today's decision wind up 287 00:16:36,760 --> 00:16:40,520 Speaker 1: reversing in favor of mcgret. So now let's sprawden the 288 00:16:40,560 --> 00:16:43,400 Speaker 1: discussion and talk a little bit about the Chief because 289 00:16:43,480 --> 00:16:47,720 Speaker 1: we learned that the Chief actually had a fall and 290 00:16:47,800 --> 00:16:51,560 Speaker 1: he was hospitalized overnight on Father's Day. Believe it was. 291 00:16:52,720 --> 00:16:55,680 Speaker 1: That's right. We wounded up learning this week that Chief 292 00:16:55,680 --> 00:16:58,800 Speaker 1: Justice Roberts did fall and did stay in the hospital 293 00:16:59,120 --> 00:17:02,400 Speaker 1: overnight on Father's Day. But it's something that the Court 294 00:17:02,480 --> 00:17:05,320 Speaker 1: did not wind up announcing and only really wound up 295 00:17:05,320 --> 00:17:09,439 Speaker 1: confirming in response to a media inquiry from the Washington 296 00:17:09,560 --> 00:17:12,760 Speaker 1: Post this week. And so this was something that was 297 00:17:12,840 --> 00:17:15,160 Speaker 1: not full to us at the time and only really 298 00:17:15,200 --> 00:17:17,879 Speaker 1: came out because someone was poking around and got a 299 00:17:17,960 --> 00:17:19,879 Speaker 1: tip about it and asked the court about it. He 300 00:17:19,960 --> 00:17:23,439 Speaker 1: said two prior seizures that if there's never been a 301 00:17:23,440 --> 00:17:27,160 Speaker 1: clear diagnosis of I don't think, but that's right too 302 00:17:27,240 --> 00:17:30,560 Speaker 1: that we know of anyway, and um, technically doctors have 303 00:17:30,720 --> 00:17:34,359 Speaker 1: said that they don't know the exact cause of them. 304 00:17:34,400 --> 00:17:38,520 Speaker 1: And really, what the shows is that not just the chiefs, 305 00:17:38,520 --> 00:17:42,760 Speaker 1: but a lot of the courts members don't necessarily readily 306 00:17:42,800 --> 00:17:46,000 Speaker 1: share their health information, and it does turn into somewhat 307 00:17:46,000 --> 00:17:50,320 Speaker 1: of a transparency issue. Obviously, the public is well aware 308 00:17:50,320 --> 00:17:54,480 Speaker 1: of Justice Ginsburg's serial battles against cancer, but that's really 309 00:17:54,520 --> 00:17:58,639 Speaker 1: because Justice Ginsberg herself has been forthcoming about that information. 310 00:17:58,680 --> 00:18:01,800 Speaker 1: And so it does seem like the justices are dealing 311 00:18:01,840 --> 00:18:04,720 Speaker 1: with this on an individual basis, and there's not necessarily 312 00:18:05,000 --> 00:18:08,120 Speaker 1: a policy at the Court of how each justice has 313 00:18:08,160 --> 00:18:11,240 Speaker 1: to deal with disclosing their health information to the public, 314 00:18:11,280 --> 00:18:14,359 Speaker 1: no matter how serious it is. Chief Justice Roberts is 315 00:18:14,400 --> 00:18:18,000 Speaker 1: fond of saying that the Court is the most transparent 316 00:18:18,520 --> 00:18:23,720 Speaker 1: of all the branches of government's right so exactly so 317 00:18:23,920 --> 00:18:28,320 Speaker 1: when it comes to something like the justice's health information, 318 00:18:28,880 --> 00:18:30,679 Speaker 1: that might not be the case in terms of the 319 00:18:30,680 --> 00:18:33,760 Speaker 1: Court being the most transparent, at least, as this recent 320 00:18:33,800 --> 00:18:36,760 Speaker 1: incident shows with Chief Justice Roberts, which if no one 321 00:18:36,800 --> 00:18:39,320 Speaker 1: had ever inquired from the Court perhaps we we never 322 00:18:39,320 --> 00:18:41,880 Speaker 1: would have known about it, and so I should probably 323 00:18:41,960 --> 00:18:44,760 Speaker 1: point out that there doesn't seem to be any lingering 324 00:18:44,760 --> 00:18:47,640 Speaker 1: health issue that we know of. Obviously, it doesn't seem 325 00:18:47,720 --> 00:18:52,000 Speaker 1: to be on par with Justice Ginsberg's very serious cancer issues, 326 00:18:52,040 --> 00:18:54,480 Speaker 1: which seems to have resolved as well. But it's more 327 00:18:54,520 --> 00:18:57,280 Speaker 1: a matter of the public being kept in the dark 328 00:18:57,320 --> 00:19:01,359 Speaker 1: about this information. That's Jordan Reuben Senberg Law Legal Editor. 329 00:19:01,880 --> 00:19:08,760 Speaker 1: I'm June Grosso and this is Bienberg m HM.