Speaker 1: You're listening to Bloomberg Law with June Grasso from Bloomberg Radio.
Speaker 1: In some ways, the cases of the Faithless Electors may
Speaker 1: have been the most entertaining of Supreme Court cases this term.
Speaker 1: It started oral arguments with Justice Clarence Thomas wondering if
Speaker 1: an elector could vote for a character from the Lord
Speaker 1: of the Rings. The elector who had promised to vote
Speaker 1: for the winning candidate could suddenly say, you know, I'm
Speaker 1: going to vote for Froto Wagons, and that's I really
Speaker 1: like Froto Wagons, and ended with a decision by Justice
Speaker 1: Elena Kagan that told the history of presidential electors. Alexander
Speaker 1: Hamilton's my name is Alexander Hamilton. There's a million things
Speaker 1: I haven't done just to just including references to the
Speaker 1: Broadway hit Hamilton's and the TV show v The Court
Speaker 1: rule that's states can require members of the Electoral College
Speaker 1: to vote for the presidential candidate who won the statewide balloting.
Speaker 1: Although a faithless elector has never affected the outcome of
Speaker 1: a presidential election, the unanimous decisions are important in giving
Speaker 1: a measure of predictability to our nation's complex election system.
Speaker 1: Joining me is elections law expert Richard Braffald, a professor
Speaker 1: Columbia Law School, which does this decision seem to take
Speaker 1: care of the concerns that were raised by the justices
Speaker 1: during the oral arguments. I think the justices, many of them,
Speaker 1: were concerned about potential chaos if the states could not
Speaker 1: make sure that electors would cast the votes that they
Speaker 1: were elected to cast. There is the constitutional argument that
Speaker 1: the original intent of the framers would actually have the
Speaker 1: electors used their judgment. But our practice since almost the
Speaker 1: beginning of the country has been for the electors to
Speaker 1: vote the positions that they were chosen to take. Presidential
Speaker 1: elections are in practice popular elections, even if we still
Speaker 1: have to use the electoral college. I think the justices
Speaker 1: were showing that made sense to have the states be
Speaker 1: able to require the electors to cast the votes that
Speaker 1: they were chosen to cast in the majority opinion. How
Speaker 1: did Elena kaig In frame it? The Constitution doesn't address this.
Speaker 1: Did she do a constitutional argument, did she do a
Speaker 1: practical argument? She really did a combination of classical text
Speaker 1: and history, text, history and practice. I mean, the text
Speaker 1: doesn't really address this. The text basically directs the states
Speaker 1: to select the electors. It doesn't say anything about any
Speaker 1: rights of the electors might have, And then she traces
Speaker 1: the history which shows that really from maybe from sevent on,
Speaker 1: it was expected that electors would vote for the person
Speaker 1: they were chosen to vote for. So I think she
Speaker 1: basically said that this was something that the states were
Speaker 1: free to do. There were no counter precedents. There was
Speaker 1: one Supreme Court Presidents in the nineteen fifties which upheld
Speaker 1: the authority of states to require the electors to take
Speaker 1: pledges that they would vote the way they were chosen
Speaker 1: to vote, but there was no punishment in that case.
Speaker 1: So I think she basically had text practice or history,
Speaker 1: and maybe a sense of in effect, we have reached
Speaker 1: the stage now where the electors are really a part
Speaker 1: of the process of popular election. And in her opinion,
Speaker 1: she referenced the HBO show Veep as well as the
Speaker 1: Broadway musical Hamilton's Correct Yes, So she seemed to have
Speaker 1: a little bit of fun with it, right. She is
Speaker 1: a very lively writer. She often puts in colloquial things
Speaker 1: popular things. She is a lively and readable writer, and
Speaker 1: sometimes find myself laughing out loud when I read something
Speaker 1: of her. She had an opinion recently dealing with the
Speaker 1: power of Congress to limit the president to just cause removal,
Speaker 1: which the court struck down in that case. And one
Speaker 1: of the arguments in the majority in that case was
Speaker 1: that this had never been done before, or it was
Speaker 1: very rarely done before. And she said that really shouldn't
Speaker 1: matter the necessary improper clauses, not the rinse and repeat clause.
Speaker 1: And she adds a lot of fairly colloquial, casual funny things.
Speaker 1: There are more faithless electors in the sixteen presidential election
Speaker 1: than ever before in history. But how much impact will
Speaker 1: this decision really have going forward? As you point out,
Speaker 1: I mean, the pace of electors are very rare. If
Speaker 1: you go back for the preceding center. I was looking
Speaker 1: at this between nineteen sixteen and twenty twelves, there were
Speaker 1: exactly nine faithless electors, and that was in twenty five elections,
Speaker 1: and there were five electors or more in every one
Speaker 1: of those elections. So it's a very rare thing. There
Speaker 1: were a sizeable number in sixteen, and I think it
Speaker 1: reflected a lot of the discontent in the country with
Speaker 1: the choices that people had. It's highly unlikely we were
Speaker 1: going to have a constitution with crisis due to faith
Speaker 1: with electors. But I think the value is more symbolic
Speaker 1: than anything else. But it does kind of confirm the
Speaker 1: idea that this is a popular election in Italy. It's
Speaker 1: a popular election by state, which is why we can
Speaker 1: still get a gap between the national popular vote and
Speaker 1: the national electoral vote. The president is popular upon a
Speaker 1: state by state basis. So it is that kind of
Speaker 1: a confirmation that whatever the intentions of the Framers were
Speaker 1: in seven, we have moved in a more small d
Speaker 1: democratic direction. Advocates for allowing faith as electors to so
Speaker 1: called go rogue said it would be a back doorway
Speaker 1: for states to add qualifications for presidential candidates, such as
Speaker 1: voting only for those who release taxes. Did that come
Speaker 1: up in the opinions? Justice Kagan takes the position that
Speaker 1: since the states have the power to write the rules
Speaker 1: for the selection of the electors, they can also imposed conditions.
Speaker 1: But then she dropped the footnotes and says what the
Speaker 1: states can't do is imposed conditions that would violate another
Speaker 1: constitutional norm, or adding a new qualification to the president.
Speaker 1: You could read that as aimed at knocking out the
Speaker 1: idea that the States could for imposed the requirement of
Speaker 1: its closed as a qualification for being president. That's where
Speaker 1: to the fault of Columbia Law School. The Subreme Court
Speaker 1: delivered a ruling in a criminal case that could have
Speaker 1: vast implications for Oklahoma's criminal and civil jurisdiction, as well
Speaker 1: as tribal sovereignty in the eastern half of that state.
Speaker 1: Justice Neil gorsts joined the court's four liberal appointees in
Speaker 1: a five to four decision that found that Congress had
Speaker 1: granted the Creek Nation a reservation and the United States
Speaker 1: had to keep its promises. In the majority opinion, Gorstge wrote,
Speaker 1: because Congress has not said otherwise, we hold the government
Speaker 1: to its word. Joining me is Jordan Reuben Bloomberg Law
Speaker 1: Legal Editor. This case is about Indian Land in Oklahoma,
Speaker 1: but it's actually a criminal case. Explain how it went
Speaker 1: from criminal case to this broader case. So the case
Speaker 1: involves a man named Jim c mcgurt, and he's a
Speaker 1: member of the Seminole Nation. So he was convicted of
Speaker 1: some very serious crimes and was serving a life sentence
Speaker 1: in state prison. However, he raised an argument on appeal,
Speaker 1: saying that because he is an Indian and his crime
Speaker 1: took place in what he said was Indian country, that
Speaker 1: the state actually didn't have jurisdiction to prosecute him, because
Speaker 1: jurisdiction for such a prosecution would only fall to the
Speaker 1: federal government under federal law. And so that wind up
Speaker 1: raising the question in turn of whether where he actually
Speaker 1: committed the crime was in fact, quote unquote Indian country.
Speaker 1: And so that's what brought into question the status of
Speaker 1: the Creek Reservation, which is where mcgret committed his crime,
Speaker 1: and the question of whether the Creek Reservation still exists
Speaker 1: today from its nineteenth century treaty origins. So the state
Speaker 1: said it wasn't legally a reservation in the first place,
Speaker 1: and even if it was, Congress has since taken away
Speaker 1: that status, explained the state's argument, right, So there's this
Speaker 1: threshold question of whether there's even a reservation in the
Speaker 1: first place, and then if there was, whether Congress has
Speaker 1: done something called disestablishing the reservation. It's a strict test
Speaker 1: where if a state argues that a reservation has been
Speaker 1: essentially undone, there needs to be a clear statement from
Speaker 1: Congress showing that that happened. And so what happened in
Speaker 1: this case, the majority opinion, written by Justice Gorsich said,
Speaker 1: in the first instance, it was obvious that the Creek
Speaker 1: Reservation was a reservation in the first place. It even
Speaker 1: used the word reservation in the treaty to discuss it.
Speaker 1: And Gorst wound up going to say in the opinion
Speaker 1: that Congress has not clearly disestablished the reservation. Even if
Speaker 1: the government did, at various points in history actually want
Speaker 1: the reservation to be disestablished, the government was never actually
Speaker 1: successful in doing that, and so technically, as a legal matter,
Speaker 1: the reservations still exists today. Corse, it said, the government's
Speaker 1: dire warnings are just that, and not a license for
Speaker 1: us to disregard the law. So tell us about the
Speaker 1: government's dire warnings. So the government was warning that Ismagert's
Speaker 1: argument is correct, that him and a bunch of other
Speaker 1: people who are convicted under state law in state court
Speaker 1: will wind up having their convictions overturned. And so there
Speaker 1: were big consequences as far as the state was concerned
Speaker 1: when it comes to criminal law. And then even beyond that,
Speaker 1: if it turns out that the Creek Reservation persists today,
Speaker 1: and if in turn, other reservations in the eastern half
Speaker 1: of the state also are still reservations then that could
Speaker 1: have the consequences for civil regulatory and tax enforcement as well.
Speaker 1: So the state's argument even went beyond the criminal sphere
Speaker 1: and into civil tax and regulatory as well. During the
Speaker 1: argument that justices were asking questions about how this would
Speaker 1: affect adoptions and business disputes. Do we know how this
Speaker 1: will affect that The ruling here focused on the criminal side,
Speaker 1: there was it actually an interesting statement that came out
Speaker 1: after the ruling, a joint statement from the state and
Speaker 1: also the tribes in the eastern half of the state
Speaker 1: talking about how they were going to work together going
Speaker 1: forward to sort out jurisdictional issues and enforce public safety.
Speaker 1: So it was an interesting thing, not the sort of
Speaker 1: thing that you see every day in terms of two
Speaker 1: sides of a dispute coming out with a joint statement
Speaker 1: together after the case. Of course, the case was mcgret
Speaker 1: against Oklahoma, but you had the Creek Nation UH and
Speaker 1: other tribal interests supporting McGirt at the High Court. So
Speaker 1: this statement that came out after was from Oklahoma and
Speaker 1: then the tribes. Of course McGirt and other state defendants
Speaker 1: who are convicted in state court could be retried in
Speaker 1: federal court, which was an argument that mcgart and his
Speaker 1: supporters were making as to why there wouldn't really be
Speaker 1: this wide disruption that the state was claiming because people
Speaker 1: could just be retried in a different court. It's not
Speaker 1: like they would just be let loose on the streets forever.
Speaker 1: There might be statute of limitations problems with some of
Speaker 1: the cases, right. There could definitely be procedural obstacles to
Speaker 1: be trying some defendants, and there could be practical hurdles too.
Speaker 1: You know, if it's a case from very long ago,
Speaker 1: witnesses could be dead, their memories could be faded, and
Speaker 1: so even if legally a lot of these defendants could
Speaker 1: simply be retried as a practical matter, that won't necessarily
Speaker 1: be the case. But the point in Gorsuch's opinion was
Speaker 1: those consequences be them as they may. That's really not
Speaker 1: the issue in the case. The issue is the discrete
Speaker 1: legal question of whether the reservation has been disestablished, and
Speaker 1: the answer to that question that the majority said it
Speaker 1: was clearly no. The reservation still stands today. So does
Speaker 1: this mean that any Indian who was convicted by the
Speaker 1: state of an offense on reservation land can now apply
Speaker 1: to have that reversed. So, as always happens in these cases,
Speaker 1: there may be further litigation testing the limits of it.
Speaker 1: But they're certainly going to be the challenges brought, and
Speaker 1: so that's something that the state is we're it about.
Speaker 1: And even the defense conceded that there certainly could be
Speaker 1: convictions that are challenged, they argue over really how many
Speaker 1: are in question, And even though the state was warning
Speaker 1: that a lot of convictions are going to wind up
Speaker 1: being overturned, of the state very may well wind up
Speaker 1: challenging those convictions being overturned now that the litigation is
Speaker 1: on sort of a new terrain, So as always, it's
Speaker 1: sort of an open question about exactly how many people
Speaker 1: are affected. But certainly there are going to be cases
Speaker 1: that wind up getting overturned as a result of this ruling.
Speaker 1: And then the question, as we're discussing, is whether they
Speaker 1: do wind up getting retried in federal court or what
Speaker 1: So does McGirt get released now or do they does
Speaker 1: it have to go back to a lower court. So
Speaker 1: the question is going to wind up going back and
Speaker 1: there will be a question of whether he winds up
Speaker 1: getting retried on the the federal level. I don't think
Speaker 1: it's going to be a situation of him just getting
Speaker 1: released out onto the street. And even if he even
Speaker 1: if he did, the federal government may well will be
Speaker 1: able to pick him up right there. That's something that
Speaker 1: does happen sometimes when there's transfer between jurisdictions. So as
Speaker 1: mcgarrett himself, even though he won the case, he very
Speaker 1: he very may well wind up still spending the rest
Speaker 1: of his life in prison anyway. And Chief Justice John Roberts,
Speaker 1: very busy today wrote the discent what was his descent about?
Speaker 1: This descent mirror mirrored the state's concerns in a lot
Speaker 1: of ways, worrying about the consequences of the decision, saying
Speaker 1: that the majority really gave it short shrift and wasn't
Speaker 1: taking the state's concerns seriously enough. And as to the
Speaker 1: legal question, Roberts also agreed with the State that the
Speaker 1: government's actions that it was taken against the reservation and
Speaker 1: the Creek Nation really amounted to the Creek Reservation not
Speaker 1: legally existing anymore. So, the descent and the majority really
Speaker 1: both disagreed as to the legal question and as to
Speaker 1: the consequences claim as well. Now I want to ask
Speaker 1: a fact question because I've read that this means that
Speaker 1: nearly half of Oklahoma, eastern half is reservation land. What
Speaker 1: is it now? I mean, do the reservations constitute that
Speaker 1: part of the land. So a little bit of background
Speaker 1: explanation is necessary to explain that. So, the Creek Nation,
Speaker 1: which was the land that was an issue in this case,
Speaker 1: is one of the five tribes that were marched west
Speaker 1: on the Trail of Tiers back in the eighteen thirties.
Speaker 1: And so the Creek, as well as for other tribes
Speaker 1: which had similar arrangements, all had treaties with the government
Speaker 1: and they wound up in the eastern part of the state.
Speaker 1: And so the government's argument here the government was concerned
Speaker 1: that a wind for the Creek would then lead to
Speaker 1: similar findings as to those other tribes as well, saying
Speaker 1: that their reservations also still exists. So it's sort of
Speaker 1: a two step process. As for now, it's technically after
Speaker 1: this decision, only the Creek reservation, which has still been
Speaker 1: firmed by the court as still being quote unquote Indian land,
Speaker 1: as to the other half. As to the remaining four
Speaker 1: of those tribes. Certainly the logic of that may well
Speaker 1: apply to that case, but as a technical matter, there
Speaker 1: could still potentially be further litigation or legislation or further
Speaker 1: disputes as to the exact status of those lands. But
Speaker 1: certainly the implication of it is essentially that the eastern
Speaker 1: half of Oklahoma would be technically still a reservation if
Speaker 1: that same logic from today's opinion is applied to the
Speaker 1: rest of the tribes as well as it was applied
Speaker 1: to the Creek. Did the justices make a decision in
Speaker 1: the other case criminal case Sharply Murphy and so last
Speaker 1: term the justices tried to decide this case, but it
Speaker 1: was a case where Justice course which was recused because
Speaker 1: because it came from the Tenth Circuit Court of Appeals,
Speaker 1: where he sat before reaching the Supreme Court, so he
Speaker 1: recused himself from that one. And the court wound up
Speaker 1: deadlocking presumably four to four on the case because they
Speaker 1: couldn't reach a decision, And so that case was on
Speaker 1: hold while the Jim c. Mcgret case was playing out.
Speaker 1: And so now, as happens often when there's a Supreme
Speaker 1: Court ruling and other decisions are sort of on hold.
Speaker 1: Now that mcgret won, the Supreme Court issued essentially a
Speaker 1: summary decision saying that Murphy wins too, and sent his
Speaker 1: case back as well. In that case, that Murphy had
Speaker 1: actually one prior so it was just affirming the previous
Speaker 1: ruling for him, as opposed to this case where mcgret
Speaker 1: lost at the previous court and today's decision wind up
Speaker 1: reversing in favor of mcgret. So now let's sprawden the
Speaker 1: discussion and talk a little bit about the Chief because
Speaker 1: we learned that the Chief actually had a fall and
Speaker 1: he was hospitalized overnight on Father's Day. Believe it was.
Speaker 1: That's right. We wounded up learning this week that Chief
Speaker 1: Justice Roberts did fall and did stay in the hospital
Speaker 1: overnight on Father's Day. But it's something that the Court
Speaker 1: did not wind up announcing and only really wound up
Speaker 1: confirming in response to a media inquiry from the Washington
Speaker 1: Post this week. And so this was something that was
Speaker 1: not full to us at the time and only really
Speaker 1: came out because someone was poking around and got a
Speaker 1: tip about it and asked the court about it. He
Speaker 1: said two prior seizures that if there's never been a
Speaker 1: clear diagnosis of I don't think, but that's right too
Speaker 1: that we know of anyway, and um, technically doctors have
Speaker 1: said that they don't know the exact cause of them.
Speaker 1: And really, what the shows is that not just the chiefs,
Speaker 1: but a lot of the courts members don't necessarily readily
Speaker 1: share their health information, and it does turn into somewhat
Speaker 1: of a transparency issue. Obviously, the public is well aware
Speaker 1: of Justice Ginsburg's serial battles against cancer, but that's really
Speaker 1: because Justice Ginsberg herself has been forthcoming about that information.
Speaker 1: And so it does seem like the justices are dealing
Speaker 1: with this on an individual basis, and there's not necessarily
Speaker 1: a policy at the Court of how each justice has
Speaker 1: to deal with disclosing their health information to the public,
Speaker 1: no matter how serious it is. Chief Justice Roberts is
Speaker 1: fond of saying that the Court is the most transparent
Speaker 1: of all the branches of government's right so exactly so
Speaker 1: when it comes to something like the justice's health information,
Speaker 1: that might not be the case in terms of the
Speaker 1: Court being the most transparent, at least, as this recent
Speaker 1: incident shows with Chief Justice Roberts, which if no one
Speaker 1: had ever inquired from the Court perhaps we we never
Speaker 1: would have known about it, and so I should probably
Speaker 1: point out that there doesn't seem to be any lingering
Speaker 1: health issue that we know of. Obviously, it doesn't seem
Speaker 1: to be on par with Justice Ginsberg's very serious cancer issues,
Speaker 1: which seems to have resolved as well. But it's more
Speaker 1: a matter of the public being kept in the dark
Speaker 1: about this information. That's Jordan Reuben Senberg Law Legal Editor.
Speaker 1: I'm June Grosso and this is Bienberg m HM.