Good News for the Indian Child Welfare Act | Crooked Media
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June 19, 2023
Strict Scrutiny
Good News for the Indian Child Welfare Act

In This Episode

The Supreme Court released its opinion in Haaland vs. Brackeen, a case that challenged the constitutionality of the Indian Child Welfare Act. In a surprising 7-2 vote, the Court upheld ICWA. Rebecca Nagle, host of This Land, joins Leah, Kate, and Melissa to unpack the opinion and what it means for indigenous families.

  • Listen to two previous episodes with Rebecca Nagle: “Go Down Clutching the Constitution” from March 2022 when the case was granted, and “The Uncertain Future of the Indian Child Welfare Act” from November 2022, right after oral arguments.
  • Listen to season two of This Land, which tells the backstory of Haaland vs. Brackeen
  • Donate to Barry Jones’ release fund and listen to the episode we did with Liliana Seguara on his case: “Innocence Isn’t Enough
  • We’re going to be hosting Strict Scrutiny Office Hours! It’ll be a special video on YouTube in about a week where we’ll answer your questions about the SCOTUS decisions out so far, the big ones yet to drop, Trump’s indictment, who should win Drag Race All Stars 8. Send a voice memo to us with your question to strictscrutiny@crooked.com. Please keep them to 20 seconds or less, and if you’re okay with it, include your name. We need these by this Wednesday, June 21st.
  • Follow @CrookedMedia on Instagram and Twitter for more original content, host takeovers and other community events.

 

TRANSCRIPT

 

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Show Intro Mr. Chief Justice, may it please the court. It’s an old joke but when an argued man argues against two beautiful ladies like this, they’re going to have the last word. She spoke, not elegantly, but with unmistakable clarity. She said. I ask no favor for my sex. All I ask of our brethren is that they take their feet off our necks.

 

Kate Shaw Hello and welcome back to Strict Scrutiny, your podcast about the Supreme Court and the legal culture that surrounds it. We are your hosts. I’m Kate Shaw.

 

Melissa Murray I’m Melissa Murray.

 

Leah Litman And I’m Leah Litman. And we seem to still be in the law, part of the Supreme Court term, The Old Law No Vibes interlude. Before we shift back to just the vibes.

 

Melissa Murray But we’re going to live in our law era for a little while because it was so unexpected, so great. It’s different after last year, I think. So we’re going to start with big and welcome news from the opinions pile. Last week the court decided Haaland versus Brackeen. That was that quartet of cases involving the Indian Child Welfare Act. And in that quartet of cases, the court, by a 7 to 2 vote, upheld the Indian Child Welfare Act against several challenges to the law meaningfully. The court made clear that the law was within Congress’s authority and posed no 10th Amendment issues, and it rejected the plaintiffs arguments on those fronts. It did decline, however, to reach the thorny ICWA protection and non delegation issues that the plaintiffs had presented concluded that the plaintiffs in this case lacked the standing to raise those claims.

 

Kate Shaw And we could not be more excited to have with us today to break down this opinion. The incomparable Rebecca Nagle, host of the award winning podcast This Land Season two of which was an in-depth examination of this very case. Welcome back to the show, Rebecca. It is so great to have you.

 

Rebecca Nagle Oh, thank you so much for having me.

 

Leah Litman So this outcome is very welcome news and maybe perhaps unlike the Voting Rights Act case, for some of us, this result was not really a surprise, at least to me, given how the oral argument in particular went in this case. Indeed, after the case was argued, like we suggested, that the tide had so turned against the challenges to ICWA that we expected the court to uphold the law and reject most of the challenges. The only one where there was some uncertainty was the ICWA protection challenge, which the court declined to address. Here we gave a shout out to the advocacy of Ian Gershengorn, a former deputy solicitor general, now a partner at the law firm Jenner and Block, which has a Native American law group who did a fantastic job at the oral argument, warding off these challenges and really discouraging the court from addressing the ICWA protection challenge in particular. But Rebecca, you reminded us that what happened at the oral argument in that case was not just a product of a single great lawyer or a law firm or practice group, but instead part of an intentional strategy that tribes had been pursuing for, you know, the last decade, if not more? Could you share that or just remind us kind of what went into defending it in this case?

 

Rebecca Nagle Yeah. So Ian was recruited to work with tribes as part of a bigger project called the Tribal Supreme Court Project, which was created by the National Congress of American Indians and the Native American Rights Fund. My understanding is that it actually started in 2001, so it’s been going for over 20 years. It came after a term where tribes had some really stunning defeats at the Supreme Court and realized in this sort of elite group of lawyers that practice at the Supreme Court, many of them weren’t very familiar with federal Indian law and weren’t serving tribes well in their advocacy. There was also an effort to really track cases and honestly, from the folks I’ve talked to who were there at the beginning, like Walter Echo Hawk, like one of the main goals was that, you know, the Supreme Court usually rules against tribes, not for tribes. So one of the big goals was just to keep cases out of the Supreme Court. And so they also do a lot of work to track cases and also coordinating briefing. And I think that this case is a really excellent example. If you look at the briefing, some of the top native lawyers have been on this case since it was filed in federal court. People have been following it. The briefing was really well coordinated. And I think you see that come to fruition in the opinion today, which I love that you guys weren’t surprised by. I was shocked. It was not how I thought it was going to go.

 

Melissa Murray So, I was a little shocked.

 

Kate Shaw I was pretty surprised too actually.

 

Leah Litman Why was I the one expecting the courts to do the right thing? This is very strange.

 

Melissa Murray I’ll just say I was surprised by the opinion and I was actually surprised that Leah was so optimistic and had so much faith in the court. So again, a stop clock and all that.

 

Leah Litman Hey, the court is the stop clock, not me, right?

 

Melissa Murray Not you, not you, the court, obviously, obviously. But I think it’s in terms of level setting by way of a reminder and background, the Indian Child Welfare Act was passed in 1978 with bipartisan support, considerable bipartisan support. And it’s a federal law that establishes certain procedures that are intended to protect Native American children and tribal sovereignty in circumstances involving Native children who are in the child welfare system or who are in adoption proceedings. And it establishes certain. Parliaments that have to be followed. If a native child is removed from her family and placed in the child welfare system. And it also requires certain processes and other requirements that have to be followed when a native child is adopted or fostered by another family, including placement preferences for native families.

 

Kate Shaw So the law was designed to protect Native families. Given the rampant discrimination against Native families and family structures in state child welfare systems. A lot of this history is really detailed in Justice Gorsuch concurring opinion, which we will get to. But just by way of a brief overview. Native families were being disproportionately broken up. Native children disproportionately placed with white families. ICWA was designed to stop. All that from happening was also responsive to the devastating effect on tribal culture and language and history that this epidemic of child removal and family break up was having, in addition to its devastating effects on individual children and families.

 

Leah Litman And as Justice Gorsuch wrote in a concurrence that was joined in this part by both Justice Jackson and Justice Sotomayor, quote, The Indian Child Welfare Act did not emerge from a vacuum. It came as a direct response to the mass removal of Indian children from their families during the 1950s, 1960s and 1970s by state officials and private parties. That practice was only the latest iteration of a much older policy of removing Indian children from their families. Okay,.

 

Melissa Murray Fantastic.

 

Leah Litman Exactly. No,.

 

Melissa Murray Just stop.

 

Leah Litman No, no, no.

 

Leah Litman Straight up.

 

Melissa Murray Just straight up fantastic.

 

Leah Litman Exactly.

 

Melissa Murray Good boy, Neil. Good boy. Neil.

 

Rebecca Nagle I think one of the things that was hard to sit through an oral arguments is that there was a lot of hypotheticals and a lot of concern for these non-native foster parents that couldn’t adopt these native kids. And it felt, you know, even though it’s not the majority opinion, I feel like what is significant about Gorsuch’s opinion is that it is putting the suffering and the pain and the separation and the generational trauma that Native families have gone through at the front and center and in the record, which at some points, while this case is being litigated, I think got lost. And so that was something that I really appreciated about the concurring opinion. What I would add to it is that those policies, like if you look at boarding schools or if you look at the Indian Adoption project and like the Sixties scoop, those things weren’t happening in isolation. They were happening during periods of broader time where the federal policy towards native nations was diminishing or just completely getting rid of tribal sovereignty. So the boarding school era coincided with allotment where tribes lost two thirds of their land base. The Indian Adoption project coincided with the termination era, where Congress was literally just passing bills, writing tribes out of legal existence. And so what we’ve seen in generation after generation is that native kids are used as these tools are sort of like the tip of the spear in this broader attack on tribal sovereignty. And that is what the plaintiffs were trying to do. You know, they were trying to undermine the legal foundation of tribal sovereignty using native children. It was scary that the case got this far. But I think it’s heartening and I think is like is good for our democracy, that the Supreme Court rebuked that attempt.

 

Leah Litman So, Rebecca, you already started gesturing toward that in just talking about the Gorsuch concurrence. But for listeners who have not listened to your previous appearances on strict scrutiny or to your podcast, This Land. And to be clear, everyone should go do that, like right now. But can you remind people of the basic outlines of the legal strategy that brought us here, that brought us to the point where there was a real chance that it could be struck down?

 

Rebecca Nagle Yeah. So about ten years ago, there was a equity case that went all the way to the Supreme Court. And I think of all these cases, it’s the one that did kind of arise organically. I mean, it rose out of private adoption attorneys doing shady stuff, but it went all the way to the Supreme Court and the non-native foster parents won at the court. But where they really won was the court of public opinion. And the dominant narrative was that ICWA was this is the case is called Baby girl. That ICWA was this bad law that was outdated and like harmed Native kids. And the framing was really around like the pain and suffering of these white adoptive parents. And so since these parties had success in that case, they organized a campaign to strike it down. And so as a handful of private adoption attorneys, a handful of powerful corporate lawyers and some right wing organizations and money, and so they went out, they aggressively looked for plaintiffs and they brought case after case. Most of these cases went absolutely nowhere because they didn’t have standing just like they didn’t have standing in this case. And they got thrown out. And I would say because they did a really good job of venue shopping in the lower courts, they got this one in the door and they got it all the way to the Supreme Court. And so, I mean, just for context, I think it’s actually we used to be able to say that ICWA had been challenged more times. And then the Affordable Care Act, but like a Republican attorney general, haven’t given up on trying to overturn the Affordable Care Act. So now I think they’re like about even or like the ACA might be a little bit more, but like it is a campaign like that, like it is an organized campaign to strike ICWA down. It’s not that like some poor family try to adopt a native kid and this organically rose to the High Court.

 

Melissa Murray And these things don’t happen in a vacuum. So as the assault on ICWA is gaining steam and the twins, it comes on the heels of a really concerted effort to limit the opportunity for family reunification and the traditional child welfare system. The adoption and say Families Act, for example, is passed roughly in this period, and it requires states to make children available for adoption if they have been away from their parents or out of their parents care for a certain period of time. And as Dorothy Roberts reminds us, the majority of kids in the child welfare system are black and brown kids. So this is sort of broadly an attack on families of color and the idea that these children are better off being adopted into and raised in non-minority families, or at least not the families of their origin. So again, a broader context in which to place all of this. You mentioned, Rebecca, that at oral argument there was a lot of discussion about the injustice that was being done to these white parents who wanted nothing more than to offer these native children the prospect of a better life. And when I heard that at oral argument, I really thought it was aimed at Amy Coney Barrett, who, as we know, is the adoptive mother of black children. She adopted two of her children from Haiti, and it just seemed very concerted and pointed that that was sort of the rhetoric and the language, and it seemed like it was aimed directly at her. And yet here she is writing the 7 to 2 majority opinion that upholds this law and avoid some of the more catastrophic legal questions that the litigants offered up here. So can we talk a little bit about this opinion and sort of break it down a little bit? You know, one, not only did she write this, it seems she has a sense of humor. I was not expecting that. Not on my bingo card at all. So listen to what she writes. I honestly think she may be listening to the pod or somebody in her chamber. Is this listening to the pod? If you are in the chambers and you listen to strict scrutiny. Just drop us a Taylor Swift reference and we will know you. And you can also tell us your safe word and we will come get you if you need to be rescued. All right. So she writes in the opinion, quote, Like the rest of its legislative powers, Congress has authority to regulate Indians must derived from the Constitution, not the atmosphere. And quote, again, very vibe’s adjacent, but it’s also kind of a sick bird where I think she’s trying to sort of get in the Kagan girl squad. So

 

Kate Shaw It is totally.

 

Kate Shaw Is it totally? Okay, yeah.

 

Kate Shaw Well, but only if you kind of know the background and if you listen to the oral argument carefully. And so let’s just remind people of that background, which is that during the oral argument, there was this exchange between Justice Kagan and 2D Judd Stone, a former Texas solicitor general, now body man to impeached Texas Attorney General Ken Paxton. Stone has taken a leave from his job attacking ICWA to defend the impeached attorney general from impeachment.

 

Melissa Murray I’m just going to say, it doesn’t end well for the body man.

 

Kate Shaw That’s definitely true in terms of the ongoing criminal proceedings.

 

Melissa Murray I mean Judd Stone needs to rethink this. It involves alternatives to really those.

 

Kate Shaw Yeah, that’s right. Well, we’ll see if self-preservation instincts kick in. But back to his time attacking ICWA, so when he was before the Supreme Court, he had the following exchange, which I think we’re in a play here with Justice Kagan.

 

Clip General, I thought I’d just give you a chance to respond to a reaction I had to your brief. And the reaction was that there is an extraordinary amount of Texas’s view of policy in your brief. So I’ll just read you a few things. You say that it was subordinates, the needs of Indian children, that it results in chaotic and often tragic outcomes, that it returns children to unsafe environments, that it excuses physical abuse, that it contributes to the alarming statistics surrounding Indian child welfare. I could go on. I haven’t really even touched the surface. Now, this may be Texas’s view. It’s it’s not a view that any other state has told us. It’s it it shares. I don’t know whether Texas’s view a right or not. I don’t have any policy views in this area to speak of. I don’t know enough. I mean, the point is courts don’t know enough. Really. This is a matter for Congress, isn’t it? It’s not a matter for the courts to decide whether ICWA does these terrible things or whether ICWA doesn’t do any of them. Isn’t that really Congress’s judgment that we’re supposed to respect a two part charter? The first is, I agree that those observations as those statements of Texas’s views have nothing to do with non delegate or non delegation anti commandeering or article. One challenge is whatsoever. Those live or die on various legal principles that are not those. They’re just. Atmosphere. They’re in part atmosphere. Yes, Your Honor.

 

Leah Litman And so he characterizes his arguments as atmosphere and then Barrett is like arguments must derive from the Constitution, not the atmosphere. This is way louder than a sub tweet. And I think that’s why Melissa is asking for the safe word from someone in chambers, because that’s quite pointed. And, you know, there was another one as well. And again, it’s just odd to me that like Lady Safe Haven shows flashes of humor because I just wasn’t sure she had it in her. So there was this also possible sign of humor in footnote four, where she rejects, again, Texas’s characterization of the Supreme Court cases, saying, quote, We have never broken down our cases this way. But even if Texas’s theory is descriptively accurate, Texas offers no explanation for why Congress’s power is limited to these categories. And this calls to mind this exchange also between Justice Kagan and 2D Judd Stone from the oral argument.

 

Clip General, I’m curious as to where you get those three categories. There are normative description of what this court has in fact there’s no other place. There’s no place where we’ve said these are the three categories that define what the plenary power means there are two.

 

Leah Litman He’s saying this is a normative description, and here she rejects the idea that it’s either descriptively accurate or normatively sensible. And it was just very curious to me.

 

Melissa Murray Judd with two D’s is now Judd with two L’s. All right. We also, I think, saw some flashes of more of that bad blood between what we perceive as bad blood between Justice Barrett and Akwa. Prospective spoiler Samuel Alito. So I will note that footnote three of the opinion reads as follows quote, Justice Alito’s dissent criticizes the court for violating one of the most basic laws of logic, with our conclusion that Congress’s power over Indian affairs is plenary, but not absolute. Yet the dissent goes on to make that very same observation.

 

Kate Shaw Okay, So those are some of the atmospherics about the opinion and we’re.

 

Melissa Murray Wait wait wait. Is that a burn on him? I mean, I think something is going on.

 

Kate Shaw Just like I think they you know, back to Fulton versus City of Philadelphia. I think they definitely have a little bad blood. Right. At least that’s what we’ve seen indications of. So those are just some of the atmospherics. And we do want to turn to what the court concludes specifically about the different legal challenges in the case. But maybe before we really drill down on that, Rebecca kind of wanted to bring you in on this general question of what you made of Barrett as the author of the opinion in this case read, given we were sort of saying we were surprised by some of the tonal choices. So either the kind of rhetoric or just, you know, her having gotten the assignment, gotten a 7-2 vote, you know, decided to squarely uphold against all the challenges that are addressed on the merits, this hugely important federal statute. So what do you make of all that?

 

Rebecca Nagle You know, I think during oral arguments, Barrett really positioned herself in the middle. So you had justices actually the vote that I’m the most surprised by his cabinet, but you had justices like Kavanaugh and Alito who were saying things that, again, aren’t based like in the law and how equity works. But these sort of dog whistle comments of like, well, we couldn’t pass a law that just Asian parents could adopt Asian children. And then you had justices that were very clearly skeptical of the plaintiffs in Texas’s argument. So you guys played that amazing exchange with Kagan. I mean, they were just like ripping the lawyers apart. It was almost funny to watch. And then you had Barrett, who was really at the oral arguments, was asking very, very specific questions. And I thought she seemed to be positioning herself in the middle. It’ll be really interesting to see, you know, a lot of a lot of conservative justices claim to be textualist and claim to follow the Constitution and what the law says. And then there’s this way where when it comes to federal Indian law, the text gets tossed really far out the window and all of a sudden, you know, like what a treaty literally says isn’t what a treaty means and so forth.

 

Leah Litman Cough. Castro Huerta

 

Rebecca Nagle Yes. Yes. And that was I will be honest. Like like you were talking about how after oral arguments, you were hopeful. The moment that I was like, oh, we’re going to lose Brackeen is when I read Castro and when I also saw that Barrett voted for it, you know? And so, I mean, Castro is indefensible and like, legally, like it literally makes no sense. And so that was the Supreme Court just completely unmoored from the law. And maybe this decision is corrective. But I thought once because I thought Barrett was maybe the fifth vote, did not think she was going to be the seventh vote. Barrett was maybe the fifth. In this case, though, that when I saw that she signed on to cash, I was like, Yeah, yeah, it’s going to happen. So yeah, I mean, I think during oral arguments she did a really position herself in the middle. You know, this isn’t the first case that she’s authored in the Arena Federal Indian Law and her time on the bench. So I think we will see what the future holds. You know, the the past few years, we’ve had some really big swings. You know, we had the McGirt decision and then we had Castro now have this. So we’ll see. The other thing I wanted to say is, you know, the whole like poor foster parents, blah, blah, sob story, I don’t think that it was targeted just at Barrett. Like that kind of sob story has been there, like since the very beginning and I think is really kind of what I would call like the nugget of the lie that sort of has spawned this entire attack on ICWA. And I would also say that just as much as like some some of the justices seem to be sympathetic towards it. What was really sympathetic to it was the media, including, you know, outlets like the New York you know, The New York Times. It’s some really like horrifically sloppy reporting around this case where they, like basically took that story and ran with it without fact checking it, you know. And so, yeah, I think that they they did that as much to like win in front of the justices as sort of to have like that media campaign that went alongside these challenges to ICWA.

 

Kate Shaw Well and I just want to call out I mean I think that there is that kind of narrative that obviously the plaintiffs in this case that, you know, both states like Texas and then the individual plaintiffs and then the sort of, you know, conservative apparatus sort of behind these challenges, And they have found a sympathetic audience in a lot of mainstream media. I think that’s totally right. But then I do think it really matters that people like you have been offering this really powerful counter-narrative. I do think it’s right that you did not have the sustained counter-narrative that surrounded the adoptive baby case. And so I don’t think you had multiple sides of that story and I don’t think be emphasized enough how important that storytelling, you know, that you are doing and that others as well are doing is around kind of shaping the publics and the justices perceptions of the stories in these cases.

 

Rebecca Nagle I think that that’s true. I mean, I think I think when you look at when the case was in the Fifth Circuit, you know, you got very sympathetic press for the Brackeens from a lot of different outlets. And then when it was at the Supreme Court, it was basically is basically like Fox News, the New York Post and the New York Times. So I was like, those were the ones that were sort of entertaining the storyline. And so I do think that there has been a very marked shift in the way that the media covered this case from the last time I was in front of the Supreme Court. And I you know, it’s hard to read the tea leaves and be like, that’s how this impacted the outcome. But it feels like it did. You know?

 

Melissa Murray I think it does.

 

Kate Shaw Yeah. It feels that way to us, too. Okay. So to turn a little bit just to the kind of the substance of the way the court addressed the arguments against ICWA that were being brought. First, the court rejects the argument that Congress lacked the authority under the Constitution just to enact ICWA in the first place. And the court really strongly reaffirms the idea that Congress has powers over Native American affairs are plenary, and they include the authority to protect Native families. Alito dissents on this issue. He says Congress can’t regulate at all in the area of family law with regard to Native American affairs. Same with Thomas. They each write separate dissents, outlining slightly different theories, but basically reached the same conclusion.

 

Leah Litman And then the majority also rejected the argument that ICWA violates the 10th Amendment on the ground, that it somehow commandeers the states by forcing the states and state courts in particular to comply with federal law. This argument was truly bananas, and it is a huge relief for both like federal law, native nations, and like the concept of law that the court rejected it, although the courts did in rejecting the 10th Amendment challenge to the statutes, say that the law doesn’t actually require states to go out and look for alternative placements that would be higher up on ICWA placement preferences. So that was, you know, notable in that part of the opinion.

 

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Melissa Murray Rebecca, when you were on the show earlier and you talked about this case with us as we previewed it, we talked a lot about the first part of that challenge, whether Congress had the authority to enact ICWA, and now the court has confirmed that it does. How big is this for the future of federal Indian law and indeed any law relating to Native American affairs?

 

Rebecca Nagle Yeah, I mean, I think that’s a hard thing to measure because it’s, you know, this decision upholds the status quo. It’s not changing things. But I think that I would say that this case, I think, is the closest we have gotten to what I think of as like a neo termination era. So the last time there was a big legal effort to get rid of tribes was the termination era in the fifties and sixties, and it came from Congress. And I think what we have today is that that is no longer popular. By going no longer live in a country where, like the majority of people are going to go along with getting rid of indigenous nations. But as we have seen in so many other issue areas, special interests can get really unpopular things done in the courts. That’s to me, what this case was and always was, was, you know, special interests trying to destabilize the legal foundation for tribal sovereignty. And we’ll have to see if they keep trying or if this is enough for them to give up. It’s a pretty resounding defeat. But, yeah, I mean, in terms of like jurisprudence, you know, like all of these principles are like really fricking well-established, you know, like literally like I mean, that was like another part of oral arguments where, you know, it was, of course, Edge or Sotomayor just being like, okay, well, what about the statute that Congress passed in like 1790? Are you saying that, like it was all unconstitutional from the beginning? Like, if Congress can’t tell states to stay out of Indian affairs, like, what have we been doing for the past two centuries? So, I mean, to me, I think that the significance of this case is that the Supreme Court was invited to take a really radical position and thoroughly rejected that invitation.

 

Leah Litman So the court also declined to address two other legal challenges that the plaintiffs had raised, saying that the plaintiffs in these cases did not have standing to raise those claims. That means that it is hypothetically possible that some other plaintiff in some other proceeding in the future might bring these challenges and the court could address them. Then, you know, Gibson Dunn is probably researching future claims and future plantiffs.

 

Rebecca Nagle They’re already working. They already have other cases that are working on. Yeah

 

Leah Litman As we speak. And so the two challenges that the court didn’t address were one, a non delegation challenge. The argument there is that Congress can’t give authority to another entity to establish rules regarding the protection of Native families. And the second is an ICWA protection challenge which allege that the protections for Native children and the preferences to place Native children with Native families were somehow unconstitutional. Race discrimination because native identity is a racial classification rather than a political one. And to be clear, that is not how the law currently stands with the plaintiffs. We’re inviting the courts to make it so.

 

Kate Shaw The court said that the plaintiffs did not have standing to raise these challenges Texas, because it didn’t have ICWA protection rights and it wasn’t injured by the existence and enforcement of ICWA and the individual plaintiffs, because in the court’s view, they didn’t sue the state defendants to enforce ICWA. So the court sort of focuses on standing as, you know, law students and lawyers will know really has these three components injury, causation and redress ability. Were you hurt? Was it because of the thing you’re complaining about? And would a favorable ruling actually fix your injury? And the court kind of focuses on the third of these basically says that because the state parties who enforce ICWA weren’t defendants in this case, there would be no guarantee that a ruling in these families favor would ensure that the state parties actually followed the ruling. I felt like this part of the opinion was very weird in its logic. I mean, I’m obviously really glad the court didn’t address this argument because I think on the merits there is a very real chance. This is part of the reason, one of the many reasons this was such a dangerous case, because embracing this idea that this classification is a racial classification, that it is subject to Strict Scrutiny would imperil just tons and tons of laws that do take account of native identity and have been permitted to do that. But I guess I just wasn’t sure if the court is ruling that this classification is unlawful. I’m not sure why it’s a leap to suggest that state parties would then abide by that ruling. So I felt like I was not totally sure that the logic cohered in this part of the opinion, and if others had thoughts about the correctness or sort of fuzziness of the Barrett logic.

 

Rebecca Nagle I think that there are a million ways you can say that these plaintiffs don’t have standing like our report showed that death. The Brackeens found out that they. We’re going to be able to adopt the first kid the week, the week that they filed this case in 2017. So like it has been moot since like day three, you know?

 

Melissa Murray Why let muteness get in the way of a good time at the Supreme Court?

 

Rebecca Nagle Yeah, yeah, yeah. We just spent a lot more, you know, a lot of people’s time and money, but so I was actually kind of hoping that the ICWA protection argument got settled on standing to me. That was what I think made the most, like, legal sense. Like, I think you have to really, really stretch the law to say that the plaintiffs have standing and they tried, you know, I mean, they even had like the breaking it through. And I don’t need to get into all the details of it through like extremely aggressive measures, get custody of a second native child out from under that child’s act when they actually hadn’t been like fostering the kid and she hadn’t been living in their home to try and get standing. But like, that kid was like, born after the case was filed. Like, you know, there’s sort of just like all of this stuff where the standing in the case does not make any sense. And I think redress ability is probably the easiest way to get a seven people to agree to that. But, you know, all of the underlying custody cases are finalized, like no kid is going to get moved no matter how this decision went down. And so this idea that the plaintiffs can say, you know, we have this unconstitutional harm that the Supreme Court has the power to fix is just not true. Yeah, but also the one thing about the sort of federal versus the state courts, that is something that came up in the Fifth Circuit. So I don’t know if you guys have had I don’t know, like an afternoon to read like one of the most insane court decisions ever. But like the Fifth Circuit is ridiculous. And at the end of all of it, like my favorite, I can’t remember the name of the judge who wrote it, but the guy who’s like, okay, after reading these like 400 pages, you might be shocked to find out. But like, none of this is relevant because none of it applies in state court because we don’t have jurisdiction over state court.

 

Leah Litman Yeah, that was the dissenter. But but the like federal state court thing and what you’re saying, Rebecca, is like the no standing argument. I agree. I don’t think these plaintiffs have standing. But to me that was always because they just were never fucking injured. Yeah, this law doesn’t harm them in this particular case and creates like no risk of future injury. And I just worry about the redress ability thing because under the court’s logic, who are the plaintiffs supposed to sue? Like they can’t really sue state court judges in light of like the SBA case. And so it seems to be like kind of bolstering that reasoning. And then I just wonder if they would even say you can sue any state court official, the redress ability thing. It just like it gives me pause, even though like I agree with like the bottom line, no standing here. But like to me it’s because like they’re just not injured.

 

Melissa Murray Well it, it also I think doesn’t address the basic claim that the court seems to sort of gloss over. Like they might actually think that these white adoptive parents have been injured by whatever the law does. That makes it harder for them to adopt native children. And that’s sort of like looming in the background of all of this. They haven’t really gone to the point like, maybe this isn’t something to which you are entitled. Right. Yeah. I will also say I think the whole standing part of this might have broader repercussions in a case like, say, Biden versus Nebraska, where you also have states raising really interesting novel claims about what they are owed and what they are entitled to.

 

Rebecca Nagle I don’t know. It’s hard to say. You might want to say, okay, because they didn’t rule on ICWA protection. It invites these special interests to just bring another case with a different named defendant, you know?

 

Melissa Murray Well, speaking of our boy, Brett Kavanaugh is like, I’m open for business for that.

 

Rebecca Nagle I know he really he he went out of his way to say that, but which we knew. We know. We knew it.

 

Melissa Murray Did we? But he’s a father of daughters, Rebecca, and he is the orchestrator of the most diverse chambers in the history of Supreme Court. How could he suggest, ominously in his concurrence that he’s open to an ICWA protection challenge if it’s brought by the right plaintiffs who have been injured and whose injury is actually redressable?

 

Rebecca Nagle You know what I would say to that, to, you know, the special interests who are trying to acquire good fucking luck because they have been trying to find a plaintiff that has standing for a decade. And that’s why this case is the only one that has gotten any traction, because all the other ones have gotten thrown out because you know how long it takes a case to get to the Supreme Court. Well, in that time, the kid’s been adopted and all of them. And so almost all of them have gotten thrown out. And the reason that this one did not is because they did a very good job of venue shopping and finding lower courts who weren’t concerned about the standing or literally like, you know, the Fifth Circuit, in their opinion on standing. They say things that are factually wrong. You know, they say that one of the adoptions hasn’t been finalized when it had been. And so maybe that invitation is there, but. They haven’t been able to do it in a decade. And so I think it’s still a good ruling that they lost. On standing for the future of ICWA.

 

Melissa Murray Agreed. I will just note, though, that the Kavanaugh concurrence is a little chilling in a lot of ways, and it almost seems as though Coach Kavanaugh’s entreating folks to keep hope alive. So he writes: in my view, the ICWA protection issue is serious. Under the act, a child in foster care or adoption proceedings may in some cases be denied a particular placement because of the child’s race. Those scenarios raise significant questions under bedrock ICWA protection principles. And this court’s precedents, see Palmore versus Sadie, which is a case about a white mother losing custody of her child because she subsequently married an African-American man. He leaves aside other precedents of the court, including Morton versus Montgomery, where the court makes very clear that tribal status is a political category and not a racial category and therefore falls outside of traditional ICWA protection analysis. But why let other precedents get in the way of a good time?

 

Leah Litman Yeah, and this Kavanaugh concurrence was reminiscent of his concurrence in the Voting Rights Act case, where, again, even though he rejected the challenge to the Voting Rights Act, justices rejecting challenges to echo here, he basically says, But I’m leaving Rahm to basically rule for another challenger in another case down the line, maybe waiting until attention on the court dies down or dissipates, and then we can go back to partying like it’s the dark ages. And the majority in this case, like noted in a footnote, that individual petitioners could challenge like acquire in their state court proceedings. In particular, once.

 

Melissa Murray Once Justice Thomas starts flying commercial,  we’ll do it.

 

Leah Litman Exactly. So speaking of Justice Thomas, there were some separate writings. We did want to touch on at least some of them briefly, in particular the Justice Gorsuch concurrence, and at least for me, the Justice Alito dissent. So maybe let’s start with the Gorsuch concurrence.

 

Melissa Murray So I’m going to say I think this is a concurrence that was trying very hard to be a majority opinion. Neil Gorsuch, our little stop clock, was at it. Once again, he notes that he’s pleased to join the court’s opinion in full, but he writes separately to add some much needed historical context. And he’s joined, at least in part, by Justice Jackson and Justice Sotomayor. And this is really a very long and methodical look at the state and federal government’s efforts to destroy native families and communities. And it really gives a lot of context to why it was not only needed and necessary, but constitutional. And interestingly, Justices Sotomayor and Jackson joined parts, but they declined to join part two, in which Justice Gorsuch begins a kind of historical exegesis on federal and state authority over tribes. And I’m not going to read some of the more fantastical writing here, because I really do think we need to praise Neil Gorsuch when he’s being a very good boy, and he has been a very good boy in this particular case. But, you know, there’s a lot here and it’s a very broad reading of federal authority over tribes. And I’m not sure that all historians would agree. I will note that he does cite strict scrutiny. Yes. Matthew Fletcher and Greg OBOYSKI quite liberally. So good. Boy, that that was good. But again, it might have been too broad. A read of congressional authority over tribes for Justices Sotomayor and Jackson to sign on.

 

Kate Shaw I did want to read one passage from the closing section, which is the following passage. He says, Often Native American tribes have come to this court seeking justice, only to leave without heads and empty hands. But that is not because this court has no justice to offer them. Our Constitution, reserved for the tribes a place and enduring place in the structure of American life. So,

 

Melissa Murray Neil.

 

Kate Shaw Go Neil

 

Melissa Murray Neil.

 

Rebecca Nagle Yeah.

 

Leah Litman Rebecca, you alluded to how during the oral argument there were concerns because the justices seem to be engaging in hypotheticals about the burdens on white families rather than centering the need for ICWA to remedy real awfulness that had been know, like wreaked on native tribes and native families. And. But fear not. Sam Alito did give voice to the downtrodden white evangelicals who think they have a constitutional right to Native children. So he began the opinion, saying the first line in the court’s opinion identifies what is most important about these cases. They are about children who are among the most vulnerable and then goes on to basically center the burden on white adoptive families and carry with it a presumption that, of course, native children should be with those families. And, you know, his closing says this closing had like real Brett Kavanaugh. I’m a nice guy concurrence vibes to it because he says, quote, I am sympathetic to the challenges that tribes face in maintaining membership and preserving their culture. And I do not question the idea that the best interests of children may in some circumstances take into account a desire to enable children to maintain. A connection with the culture of their ancestors. And I just thought, sure. Jan. Um

 

Melissa Murray This actually. Doesn’t this remind you of his confirmation hearings where he talks so movingly about his immigrant past and his ancestors coming from Italy. I thought this was all sort of like.

 

Leah Litman So maybe, like white people can maintain a connection to the culture of their ancestors, but no one else can. This now is making more sense.

 

Rebecca Nagle Yeah

 

Melissa Murray Just adding some context. I’m the Neil Gorsuch here.

 

Rebecca Nagle Yeah. I mean, I think that again, it’s just this this lie about it. I mean, the truth is, is that if you count why Y R.J., who’s born after this case, was filed and is legally not part of it, but if you count YRJ, there are four kids that these plaintiffs tried to adopt. All of them, each and every one of them had a blood relative who wanted to raise them. And two of those cases, the blood relative, had already raised them for a significant portion of their life. And in the other two cases, the kids were placed in foster care at birth. Every blood relative got pushed back, whether that was from a social worker, a family court judge, the foster parents themselves. So in some kids situations, the foster parents like called family members and try to talk them out of adopting or filed a bunch of lawsuits to try and prevent the kid from going into a family member into a native home. And so this story just has no grounding. It has no grounding in reality. And so what really actually happened in the underlying custody cases is that because, you know, like you were mentioning, Melissa, the foster care is like racism is alive and well in the foster care system. Is that when you look at who actually faced the most hurdles and the biggest barriers to try and adopt these children, it was their native family members. It was not these foster parents. And then we can get into it. You know, just the idea that if you foster kid, you get adopt them. That’s not how that works. Is that what was explained? One of the you know, speaking of standing, one of the one of the families signed a paper that they understood that they want to be able to adopt the kid, you know, And so it’s just like all of this stuff is just it’s a way that there’s been this mythology that has been built up around ICWA that doesn’t match the facts on the ground, even in the cases that they chose to take to the Supreme Court, like even these cases do not tell that story.

 

Kate Shaw Well, and thank you for actually telling the real story and helping to set the record straight. So thank you so much to the great Rebecca Nagle for joining us. There’s literally no one better on the planet to break this case down with. We hear there may be a special episode in the works for this land about the opinion. Is that right?

 

Rebecca Nagle Yes, absolutely. So we’re in the middle of working on an update episode about the opinion that will be out Friday.

 

Melissa Murray Well listeners be sure to stay tuned for that? The bonus episode will be out later this week in the This Land feed. In the meantime, you can go back and listen to all of season two of This Land, which breaks down this entire case, its impacts and Rebecca’s investigation into the special interests who were involved in trying to challenge ICWA. We’ll also be dropping the bonus episode, breaking down this decision even further in the Strict Scrutiny feed later this week as well.

 

Kate Shaw Thank you so much for joining us, Rebecca.

 

Rebecca Nagle Thank you so much for having me.

 

[AD]

 

Leah Litman And now onto the other opinions. But first, I did want to float a theory that I also shared on Pod Save America, which is , did our trip to D.C. last week force the Supreme Court to behave itself, at least for a temporary period? What do you think?

 

Kate Shaw This is this is the press intimidating the justices? This is what Alito has been complaining about. We are part of the interrogation.

 

Melissa Murray This is why they have security. That’s why they have security

 

Leah Litman This is why he’s being driven around in a tank. He needs to be insulated from the critiques. Okay.

 

Kate Shaw That’s what the tank is for. Yep.

 

Leah Litman But lest you think everything was bad news for Sam Alito this week, he did get to write a unanimous opinion against a criminal defendant to bomb his struggles in Smith versus United States. So in this case, the court held that trying a defendant in the wrong venue that is the wrong place does not prevent the government from later trying the defendant in a correct venue. People have speculated that this case may have influenced the federal government’s decision to charge Donald Trump in South Florida rather than in D.C., as some had assumed might happen before the indictment. Because if the Supreme Court had said charging the defendant in the wrong venue means you can’t later recharge the defendant in the right venue, then charging the defendant in D.C. in the event of court said that was wrong, then you could have been a high risk proposition. But in terms of the Trump prosecution, even in light of this decision, you know, Florida did also make sense just because of the quick docket and because most of the events underlying the crime happened there in the bathrooms at Mar a Lago.

 

Melissa Murray All right. We also got an opinion in Lakota Flambeau Band of Chippewa Indians versus Koffler. I love saying French names. It’s like my favorite thing to do on this podcast. This is an 8 to 1 opinion.

 

Leah Litman Fantastic Melissa

 

Melissa Murray Fantastic. Fantasy had a certain. Jessica This was an 8 to 1 opinion written by Justice Jackson and it finds that Congress abrogated tribal sovereign immunity from suit when it authorized suits against native nations and tribes in the bankruptcy code. What this means is that you can sue a tribe if you are alleging that a tribe is engaged in conduct that violates the bankruptcy code. And here the tribe or really a bank owned by the tribe, the bank is called Lend Green was alleged to have attempted to collect on a predatory loan debt after the debtor filed for bankruptcy. When we previewed this case, we talked about its really tragic facts. So the bank was offering loans with like several hundred, if not thousand percent interest rate. So I mean, true predatory lending. And eventually this debtor was shockingly unable to pay and filed a bankruptcy petition. The bankruptcy code explicitly provides that collection efforts are supposed to stop after an individual files a bankruptcy petition. But this individual alleges that the collection efforts continued even after he filed for bankruptcy. And indeed, they were so aggressive that he experienced depression and attempted suicide. The bankruptcy code authorizes a suit against any quote unquote, governmental unit, which it defines as foreign or domestic governments. And the court here said that tribes count as domestic governments for this purpose. So it agrees that abrogating tribal sovereign immunity requires Congress to have conveyed its intent to abrogate in unequivocally clear terms. But it says here that the relevant statutory provisions do clearly abrogate tribal immunity.

 

Kate Shaw I think Justice Jackson is really emerging as not only the conscience of the court on things like race and history, but also in like a lower key way, this incredibly sophisticated drafter of statutory opinions. And again, like this is a much less flashy kind of tour de force than her lone dissent in the Union case. Glacier Northwest, which we’ve talked about, or her fantastic opinion in the spending clause case to Lebowski. But this is also a super deftly done opinion. I think there are things that are quite convincing actually in parts of the Gorsuch dissent as well. But as to the Jackson majority opinion, I found it just really powerful, engages closely enough with text that it is acceptable to many of the court’s self-proclaimed textualist. But the way it actually discusses the statute is with this really acute sensitivity to the purposes of the bankruptcy code, which is really the idea of preserving a fresh start. And so she kind of reads the various provisions, not in a vacuum, not just a couple of words in isolation and with consultation to various dictionaries like she reads these provisions, including the state provisions at issue here in light of the overall purposes. And it is just so refreshing.

 

Leah Litman As Kate was suggesting, the lone dissenter is Neil Gorsuch, who said that the statute has to specifically or explicitly mention tribes in order to authorize suits against tribes.

 

Melissa Murray It’s also noteworthy that Justice Gorsuch cited Leah’s colleague and former Strict Scrutiny guest Matthew Fletcher. That would be two Matthew Fletcher cites in two Gorsuch opinions from this collection of opinions. He cited Matthew Fletcher’s work on tribal consent in the Stanford Journal of Civil Rights and Civil Liberties. He also cites, again, a former Strict Scrutiny guest Greg Ablavsky as well as UC Hastings, Zack Price. I will note, however, that all of these individuals, although they are fantastic scholars, happen to be scholars of a particular persuasion, the male persuasion. And for the record, I just want to be fair to him, because we have been really bullish on Justice Gorsuch in this episode, and I want that to continue. He does cite Columbia’s Christina Duffy So this is better than his usual record. But again, there are a lot of really terrific women scholars doing great work in federal Indian law, and all of them are writing on points that are actually relevant to what you’re talking about. You can try and cite them. It would be great for you and would make this opinion look a little less like Princeton in the 1970s. So try it. You’ll like it.

 

Leah Litman We also got the opinion in Laura versus the United States, the Armed Career Criminal Act case I insisted on covering during the Wisconsin live show, even though we had a lot of things to cover then. So this case is about the proper interpretation of the arm of criminal act or act, and specifically ACA’s stacking provisions that require courts in certain cases to stack sentences, which means to run the sentences consecutively back to back rather than concurrently at the same time. And that decision can make a huge difference in the length of a person’s sentence.

 

Melissa Murray Like when you stack and peloton like you have to do in back to back, you can’t do this. You can’t stack classes and take them concurrently. So it’s the peloton theory of ICWA, right?

 

Leah Litman Yes. Although is there even a hypothetical way of taking classes concurrently on Peloton.

 

Melissa Murray Like just how you can declassify things with your mind? You can also just take classes concurrently in your mind and get it all your goals mentally. Anyway, ACA provides that no term of imprisonment imposed under subsection 924 C shall run concurrently with any other term of imprisonment. The question here is whether that provision applies when someone is convicted and sentenced under 924 J And as you all laid out in the live show where the more straightforward textual reading of these provisions seem to be that someone who is convicted and sentenced under 924 J does not have a quote unquote term of imprisonment imposed under 924 C end quote because 924 J imposes terms of imprisonment that differ from those that are imposed under 924 C, two different provisions to different terms of imprisonment.

 

Leah Litman And when we recap the argument in the case, we noted that the national forensic champion, Justice Jackson brought that national forensic champion and former public defender energy to the argument. So she was pointing out that a judge could still choose to impose consecutive sentences even if the ACA provision did not require it, and that prosecutors could choose whether to charge someone under Subsection C or J if they really cared about getting mandatory consecutive sentences.

 

Melissa Murray And the other justices seemed to like that national forensic champion energy because Justice Jackson wound up with a majority opinion, finding that the mandatory consecutive sentencing provision for sentences imposed under subsection C does not apply to sentences imposed under subsection J. It is, as some might say, a unanimous, breezy opinion that comes in at a brisk ten pages, gets to all the points like a bikini, covers everything it needs to, doesn’t cover anything. It doesn’t have to. It starts with the plain terms of the statute, but then, as it says, drills into the details to confirm that reading so easy, breezy, nice and squeezy.

 

Leah Litman It also had some sick burns in it, in my view. So it says, quote, The actual statute bears no resemblance to the government’s vision and quote and it declined to address the government’s kind of boogeyman argument that the result the court reached in this case would mean that the government could try a defendant under both subsection C and subsection J, or do one and then the other without violating the double jeopardy clause.

 

Melissa Murray Textualism and constitutionalism. Amazing

 

Leah Litman Love to see it.

 

Melissa Murray The other decision we got was US ex rel Polansky versus Executive Health Resources. And this was an 8 to 1 decision written by Justice Kagan about the false claims that the False Claims Act is the law that allows private parties to sue entities who cheat the federal government out of money. The decision held that the federal government can ask for an FCA case that is brought by a private party to be dismissed even after the government initially declined to intervene in the case. And the way these cases work is that a private party called the Relator files these cases in what are known as key Tom suits. These are suits where the private parties basically suing on behalf of the United States to protect that government’s interests. When a suit is filed, the government can choose whether to intervene, that is, to participate in the case. And here the government initially declined to intervene and the case proceeded to discovery. So that’s the stage where the parties collect and then share and exchange evidence. And then the government, after several years, decided the suit should not go forward and asked the court to dismiss it.

 

Leah Litman And the Supreme Court said the government can do just that and end the case. But in some ways, the more interesting parts of the opinion were the dissent by Justice Thomas, where he argued that the False Claims Act is, you guessed it, unconstitutional. Justices Barrett and Kavanaugh agreed with the result in this case, but they wrote to express sympathy for Justice Thomas’s view that the statute is unconstitutional and perhaps might entertain that argument in another case where it had actually been raised. So stay tuned for the possible destruction of the False Claims Act. America, Apparently the Constitution entitles people to cheat the federal government and prohibits the federal government from trying to effectively do something about that.

 

Melissa Murray The fact that this opinion was authored by Elena Kagan gives us some insight into what might be awaiting us as this term draws to its conclusion. So as all of you know, each justice usually authors one opinion from each sitting before they get a second opinion. In this particular setting, the December saying there are nine cases, which means that each justice should get one opinion. And here are the opinions for which we are still awaiting decision. So United States versus Texas, which is a challenge to the Biden administration’s immigration enforcement guidelines. It also involves a state standing question that may or may not be implicated by the court’s decision in Haaland versus Britain. There’s also the theory of three creative versus L.A. that is the manufacture case about LGBTQ equality that considers whether a wedding website designer is obliged to provide services for same sex weddings. And we say it’s manufactured because no one has actually approached this wedding website designer for a website for their gay wedding. So this is all very hypothetical, but why let that get in the way of a good time? There’s also more versus Harper, which is the case concerning the GOP fanfic known as the independent state Legislature theory, which considers whether or not democracy is constitutional, or more specifically, whether state courts have the authority to interpret state constitutions or whether that is exclusively the province of state legislatures. So those are the cases.

 

Leah Litman So those are the three cases that are outstanding from the DEC sitting. And there are three justices who have yet to write opinions from that sitting. And so those cases are likely to be authored by these justices because it’s possible more gets dismissed. That just would have meant one of these justices had been assigned to write the opinion. But anyways, so it seems like these three justices are writing that majorities in those cases. One. Chief Justice Roberts. Two. Brett Kavanaugh.

 

Melissa Murray Well. I wonder about Brett Kavanaugh and what he might do where he decides 303 Creative  versus Elenis, I think that’s kind of a wild card, if that’s the case that he has, and we don’t know if it is.

 

Leah Litman I’m not optimistic about that. I’ll just put that out there.

 

Melissa Murray Fair enough.

 

Leah Litman And then the other option is Neil Gorsuch. Yikes.

 

Melissa Murray Definitely no Indian law cases in this bunch.

 

Leah Litman No. No indian law cases.

 

Melissa Murray Good Neil is in the box. Good. Neil is in the box for now.

 

Leah Litman Yeah. And I also have to say, these cases would be kind of big assignments for the Junior Varsity Bro’s. I mean, you know, from this sitting, Justice Thomas and Justice Alito wrote The federal criminal fraud cases, public corruption cases, Simonelli and Percoco. So that was just interesting. But again, does not make me optimistic about what is going to happen in any of these cases.

 

Melissa Murray What if the cheapest in the majority and all of these and assigned some of them to the jayvee in the hopes that they would yield either more moderate decisions or decisions that were just. Well, I think same idea, just like less strident all the way around

 

Leah Litman Melissa. No one assigns opinions to Neil Gorsuch, hoping that they will be less strident and more moderate. Sorry.

 

Melissa Murray You’re right. No one assigns an opinion to Neil Gorsuch, hoping it will not be pedantic. But it could be just like let him have this little history frolic and but it’ll be less crazy than the history that either Thomas or Alito could write.

 

Leah Litman Sure, perhaps.

 

Melissa Murray So I’m going to be out next week for some family stuff. And that’s really when most of the decisions that I’m going to be watching for are going to come down. So sorry you won’t get to hear my extremely hot takes on some of these. But I know that Leah and Kate are the varsity team and they’re going to be ready to take this on. And I. I will chime in from tropical locales to let you all know what I’m thinking.

 

Leah Litman Yes. And you’ll be back the following week. And also for our term recap so

 

Melissa Murray For sure. I’m not going to let Justice Thomas dismantle affirmative action and have nothing to say about it.

 

Leah Litman No, that does not sound like you.

 

Melissa Murray Nope. Can confirm

 

Leah Litman So what other case related development that we wanted to touch on that’s about a case longtime listeners will recall. And it’s the case of Barry Jones. He was one of the defendants involved in the case, the Supreme Court case, Shinn versus Ramirez. That’s the case from last summer where the court held that it is illegal for a federal court to consider evidence that you were innocent, even though that evidence was never presented before because the state appointed you an ineffective lawyer. The Supreme Court said that Arizona could go ahead and execute Barry Jones, even though there was incredibly powerful evidence of his innocence, so powerful that four federal judges agreed, it was basically more likely than not that he didn’t commit the crime. So even though the Supreme Court reached that perverse result, Arizona seems to have come around and seen the light, maybe because it was ruthlessly mocked for getting up at the Supreme Court and saying innocence is not enough, or maybe because there was an election anyways. Arizona negotiated an agreement that resulted in Barry Jones release from prison and vacating that is, undoing his murder conviction after Barry has been in prison for 30 years for a crime he did not commit, including on death row. So naturally, Barry is going to need some help to restart his life. After this, The defense investigator on his case started a go Fund me, which will link to in the shownotes. It’s called Barry Jones Release Fund if you want to go look for it. And if you would like to hear more about Barry Jones case, listen to the episode we did last summer with Liliana Segura on Shinn versus Ramirez. Liliana is the reporter at The Intercept, who did incredible investigative work into his conviction and innocence. And I’ll just say the page for the Go Fund me in case you happen to be at a computer and want to type it out, it’s go fund me dot com slash f slash Barry hyphen Jones hyphen release hyphen fund. But again, we’ll put that in the show note as well. Before we go, we wanted to do some quick court culture because there were several occasions for celebration this week. It has been a long time coming, but finally we have

 

Melissa Murray Insert music here. Insert music here Melody.

 

Leah Litman It’s been a long time coming, but we finally have big reveal from under the.

 

Melissa Murray Un-Box it. Unbox it.

 

Leah Litman Exactly. The the like big feathers from the box. Drum roll, please. Judge Dale Ho was confirmed by the Senate to District Court in New York. He is only the second judge ever to be directly confirmed to the federal courts from a position at the ACLU. Justice Ginsburg was the first judge to do so. He is also the first strict scrutiny guest to be, but not the last. Fingers crossed to be confirmed to the Article three federal courts. Listeners may recall we did an episode with Dale about the documentary The Fight that covered, among other things, Dales involvement in the successful challenge to the Trump administration’s efforts to add a citizenship question to the census. Spanning the me that I will go down with my dying breath. This is actually necessary to enforce the Voting Rights Act. Our listeners will recall that again, it’s a reference to the Census case where the Trump administration pretended to give decisions about enforcing the Voting Rights Act and claimed that the census adding a citizenship question would somehow allow them to do so.

 

Melissa Murray I mean Leah, I think you’re not giving them enough credit. I mean, we all know that Wilbur Ross left the administration and immediately went to work in the ACLU. That’s a joke.

 

Kate Shaw I think was LDF, actually.

 

Melissa Murray Probably. Yes. Yes. Correct. Correct.

 

Leah Litman Democracy now!

 

Melissa Murray Democracy Now! Forever. It also gives us the opportunity to say that finally on this podcast, there is a judge so that we can actually recognize and nothing.

 

Leah Litman But respect for my judge Ho.

 

Melissa Murray Love this

 

Kate Shaw We could also just call if we ever we could call him the good judge Ho to distinguish him from friend of Harlan bad judge Ho if if the need to specify ever arises, but we’ll try exclusively, if we can, to talk about the good judge Ho.

 

Leah Litman Yeah. Um. Also this week, Judge Nusrat Chaudhry was confirmed to district court in New York, making her the third judge ever to be directly elevated to the federal courts from the ACLU. She will also be the first Muslim-American. Woman to be an Article three federal judge. So lots of good news.

 

Melissa Murray It’s almost like the Constitution includes civil liberties. It’s amazing. This is so cool.

 

Leah Litman Almost like almost, almost like.

 

Kate Shaw And just because the good news somehow keeps coming this week, we also, as we sat down to record, got a cloture vote on Julie Rickleman that was successful. So I guess almost soon to be Judge Rickleman will actually have her actual confirmation vote sometime this week. She will, when confirmed, be a judge on the first circuit, making her the second Strict Scrutiny guest to join article three.

 

Melissa Murray I was just thinking of her. I was just thinking of all the people who’ve come on like someone else is going to be a judge. I totally.

 

Leah Litman Elie Mystal my position is Elie Mystal to the Fifth Circuit to the Fifth Circuit yesterday, and then the Supreme Court, together with Dale Ho, Julie Rickleman, and a few others.

 

Melissa Murray Sam Shankar.

 

Kate Shaw News is good, but it’s not quite that good.

 

Leah Litman Manifest. Manifest it, Kate

 

Melissa Murray Think about it, Kate.

 

Leah Litman Shit my friends say to get me by.

 

Melissa Murray I thought you were the optimist here. Like, Come on.

 

Kate Shaw Look, I will say, I think my optimism has been shored up in recent days. So this is a career reproductive rights and justice litigator. She unapologetically argued for abortion protections. She said the word abortion to the Supreme Court’s face many, many times, sometimes successfully. And it’s just extraordinary. She’s going to be a federal appeals court judge and that she got and I think this actually is a meaningful indicator about the moment that we are in. She got the votes of Manchin and Collins and Murkowski and I think will be on the bench before the week is up. So this is a really thrilling development. Both she and Dale had a very long road to get to this point, but we’re here.

 

Melissa Murray Cloture was also invoked on LDF lawyer Natasha Merle, and she would be another fantastic civil rights lawyer who goes to the federal bench, perhaps springing hope that the Constitution is also about civil rights and civil liberties .

 

Leah Litman A girl can dream.

 

Melissa Murray Hits different.

 

Leah Litman We also wanted to draw attention to an order out of Wisconsin and the Wisconsin Supreme Court. So we got an absolutely unhinged writing, though, because it is a brief period of good news. This writing did come in the form of a dissent from the Wisconsin Supreme Court. So in Jane Doe four versus Madison Metropolitan School District, the Wisconsin Supreme Court declined to hear before an intermediate appellate court weighed in a challenge to a school policy that some parents alleged allowed the school to facilitate students social transition or being treated in accordance with their gender identity, allegedly without the parent’s consent. Basically, the student could indicate their name, pronouns and appearance without the school informing the parents, or that’s what the plaintiffs allege. The case had previously been up to the Wisconsin Supreme Court, with the plaintiffs arguing that they needed to be able to remain anonymous. So the Wisconsin Supreme Court declined to intervene again this time, and whether the plaintiffs could have their claims heard on the merits. And after the order was released, Justice Rebecca Bradley issued something. It’s styled as a dissent. It definitely reads like an unhinged rant of someone whose brain has been severely addled by some combination of Fox News and Tucker Carlson’s new Twitter show.

 

Kate Shaw Or we think she’s maybe auditioning for a place on the like Trump’s Supreme Court shortlist. If there were to be a second division. I don’t think she’s really in the right age demographic.

 

Leah Litman She’s older than twenty.

 

Melissa Murray She’s not a fetus, therefore.

 

Leah Litman No, but to your point, Kate, I mean, like Ron DeSantis is criticizing Trump for appointing squishes to the Supreme Court rather than justices like Clarence Thomas and Samuel Alito. So they really are looking for the Rebecca Bradleys of the next generation. And so some choice excerpts from this thing that she wrote. You know, she berates the concurrence by Justice Brian Hagedorn, a conservative justice, for accurately describing the opinions of the Wisconsin Supreme Court justices in a case about the 2020 election, when several justices, including Justice Rebecca Bradley, voted in favor of a challenge that sought to throw out several thousands of votes cast in Milwaukee because Justice Hagedorn’s concurrence as a dissenting justice would have thrown out votes. Justice Bradley says he is, quote, repeating a farcical talking point of liberal partizans in the media and beyond and quote, just another amazing illustration of how the worst and meanest and most unfair thing you can say about Republican jurors is to accurately describe what they did. And the entire thing begins with her quoting Jonathan Swift’s The Art of Political Lying quote as the vilest writer had his readers. So the greatest liar has his believers, end quote. And in the first note, she cites a Bible passage back at Justice Hagedorn, who dropped a footnote to be like, Hey, I’m not going to respond to the dissent which was issued after the orders released. And is maybe a bit much and she just went insane-o.

 

Kate Shaw It’s not. It’s like a rant, I think unlike any, again, like, self-styled dissent. It claims to be a judicial opinion, and it’s just not recognizably that at all. It is it is wild. And I do think that it is striking that it’s actually the Wisconsin Supreme Court actually hasn’t turned over in its composition yet. Obviously, we spend a lot of time in this podcast talking about the April election. And so Judge Janet won, but she’s not yet on the bench and won’t be until August. And Rebecca Bradley is already this angry at her colleagues. And I just can’t imagine what sort of the post August era is going to bring.

 

Leah Litman She has some Sam Alito level feelings. And speaking of Sam Alito, so we also learn some more about Justice Alito’s original ish approach to history. It turns out that his knowledge and interpretation of the Dark Ages and specifically 17th century English law might not totally be on the up and up. So the National Law Journal reported that some English legal scholars went looking into English law on felony murder after Alito rejected a double Jeopardy challenge in Gamble on the Ground that the historical evidence did not support the defendant’s argument that once the state or the federal government tried the defendant, the other could not subsequently try them.

 

Melissa Murray So here is one of the things that these legal scholars lodged at Justice Alito’s approach to history. Quote, There is something about the tone in which Alito writes that makes you want to show him to be wrong. Quote, said Peter Aldridge of the Queen Mary University of London. And we are all Peter Aldridge. I think the opinion further rejects the defendant’s reliance on a 17th century murder case known as Hutchinson, to argue that states and the federal government couldn’t prosecute a defendant for the same crime rate. And Alito here is like, that’s not really what the decision stands for. Records are a little unclear as to what it means. The case wasn’t that important but, these English legal scholars seem to say au contraire or Sam. Through their research, they uncovered Northeast contemporaneous reports summarizing the Hutchinson rule, and it says, quote, The judges certify that a trial and acquittal, according to the laws of Portugal would, in this instance, be as available for the offender as a bar to a prosecution, as would a trial and acquittal here. Thereupon, Hutchinson was now discharged, you see, etc.. Hmm. The information added by this article resolves the matter. Northeast report of the decision of the judges in Hutchinson is completely conclusive. This is what Aldridge and the other author and Mumford, a professor at King’s College in London, says if the US Supreme Court is true to its originalist claims and here’s the kicker it should review gamble. I love that people across the pond are digging into his shitty history and being like, bitch, get a Ph.D. like this is terrible history and like, we didn’t even do that much work. We just, like, literally went to an archive and looked at this and were like, Yeah, this is totally wrong. And you’re not an historian. So much for history and tradition.

 

Kate Shaw And that’s true about his account of history in Dobbs as well. It’s just that there’s so much there is just so much of it. It’s going to be a little bit harder to refute in quite such a compact way as this kind of gamble reputation. But to be sure, that process is underway, Historians, I think, are picking apart. And I just you know, I hope that they’re able to to show in a successful way, as these English scholars did, what I think everybody who studies this stuff knows to be true, which is that his history in Dobbs was garbage.

 

Melissa Murray I mean, I just also want to say I really wish we could have read this in an English accent, because I also think it would have been like a really sick but I think it sounds better with an English accent, like basically you’re an idiot an absolute idiot. Right

 

Leah Litman We should have requested Jon Hamm to do a skit just like he reenacted one of the classic scenes from the Vanderpump Rules reunion on Watch What Happens Live. So it all comes back to Sandoval when you think about it. But this piece is just part of the larger Sam Alito. Read a book, try some archives challenge.

 

Melissa Murray Read a book, do some history. Yeah.

 

Leah Litman So that’s about all we have time for. Before we go, I wanted to shout out Garrett, the Delta Gate agent who was very kind to me on my flight back to Detroit from DC after our live show in DC and apparently listens to the pod.

 

Melissa Murray We are not going to shout out the United Gate agents who did not let me board the flight after Leah and I. Okay. Like I

 

Kate Shaw Tell our listeners, they need to hear this.

 

Melissa Murray Yeah, I missed I literally missed a flight because Leah decided to ply me with Moscow mules in the airport.

 

Leah Litman Okay. Whoa, whoa, whoa. Speaking of rewriting history, what happened is we get to the airport. My flight is delayed. Melissa’s is in, like, 20 minutes, and she’s like, You want to get a drink? And I’m like, Okay, sure. I’ll walk over to your gate. Since your flight is sooner. We order moscow mules, start chatting, turn our phones over, and then all of a sudden it’s like, wait, my flight takes off in six minutes and then frantically runs off to the gate. And, you know, I think most listeners can tell we have a good time on this podcast. We enjoy each other’s company. We like to talk. And, you know, this was just

 

Melissa Murray Sometimes you miss a flight. Sometimes you miss a flight.

 

Kate Shaw When you’re like ten feet away from the gate is what I love the most about this story.

 

Melissa Murray I will say, a lot of flights were boarding. It wasn’t clear.

 

Leah Litman Exactly. A lot of flights were boarding. They definitely never called her flight.

 

Melissa Murray They did not

 

Leah Litman Or called her

 

Melissa Murray They did not. They do not say, Melissa Murray, get your ass over here. This plane is leaving. They never said that. So. But I do appreciate that they put me on the next flight. And then Leah and I went and had a burger and continued our discussion of the Scandoval and and then we were good. That’s all good.

 

Kate Shaw That’s a great ending to the DC saga. We got. We got to get back there soon.

 

Melissa Murray DC folks, we loved seeing you in person at Duke’s counter. Thanks so much for coming out. I think we actually stopped traffic on was it Connecticut Avenue like? I mean, I think we actually were involved with like some kind of traffic pattern disruption because you guys want to take selfies. We wanted to take them with you. And people were like, Is that Angelina Jolie? We’re like, No, it’s just Melissa, Kate and Leah taking pictures on the side of the road. But thank you. It was great to see you all. One final shout out to Strict Scrutiny listener and apparently an aficionado of a number of different legal pods, all substandard relative to Strict Scrutiny. Richard Goodalldig. Who came up to me on the street in New York and told me how much he loved the pod. So, Richard, thanks for listening and thanks for listening to all the legal podcasts. I mean, you really know what you’re talking about and we are glad for all of the work you do in immigration law.

 

Leah Litman So we are going to be hosting strict scrutiny office hours. It will be a special video on YouTube in about a week where we will answer your questions about the Supreme Court decisions out so far. The big ones yet to drop Trump’s indictment. Who should win, Drag Race, All Stars and so on. So send a voice memo to us with your question to Strict Scrutiny at crooked dot com. Please keep them to 20 seconds or less. And if you’re okay with it, include your name. We will need these by Wednesday, June 21st.

 

Melissa Murray Don’t forget to follow us at Crooked Media on Instagram and Twitter for more original content host takeovers and other community events. And if you’re new to Strict Scrutiny or you just really love this episode, because of course you did, make sure to ratings and reviews on Apple Podcasts and subscribe wherever you listen so you never miss an episode.

 

Kate Shaw Strict Scrutiny is a Crooked media production hosted and executive produced by Leah Litman, Melissa Murray and Kate Shaw. Produced and edited by Melody Rowell. Ashley Mizuho is our associate producer. Audio support from Kyle Seglin and Veronica Simonetti. Music by Eddie Cooper. Production support for Michael Martinez, Leo Duran and Ari Schwartz. And digital support from Amelia Montooth.

 

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