Advisory Opinions - The Chief Justice Didn’t Hate President Obama | Interview: Gov. Kevin Stitt

Episode Date: April 21, 2026

Sarah Isgur and David French push back against the New York Times ⁠reporting⁠ on the birth of the shadow docket, discuss Justice Sotomayor’s apology after criticizing him in personal terms during a speech at the University of Kansas School of Law, and interview  Oklahoma Gov. Kevin Stitt about ⁠McGirt v. Oklahoma⁠. The Agenda:–The birth of the shadow docket–Who leaked Dobbs?–Justice Sotomayor apologizes to Justice Kavanaugh–Justice Kagan’s screaming tantrum–Justice Thomas’s talk on the Declaration of Independence–We are the McGirt podcast Order Sarah’s book here. Advisory Opinions is a production of The Dispatch, a digital media company covering politics, policy, and culture from a non-partisan, conservative perspective. To access all of The Dispatch’s offerings—including access to all of our articles, members-only newsletters, and bonus podcast episodes—click here. If you’d like to remove all ads from your podcast experience, consider becoming a premium Dispatch member by clicking here. Learn more about your ad choices. Visit megaphone.fm/adchoices

Ready? I was born ready. Welcome to advisory opinions. I'm Sarah Isgir. That's David French. We've got Oklahoma Governor Kevin Stitt joining us today to talk about McGirt versus Oklahoma, that 2020 YOLO Justice Gorsuch opinion that said half of Oklahoma, not actually Oklahoma anymore.

Plus, of course, we've got the memos leaked to the New York Times about the birth of the shadow document. Or was it? More to come. And of course, lots of news from the Supreme Court. Justice Sotomayor's apology. Justice Kagan screaming at Justice Breyer, Justice Alito not retiring, Justice Thomas with a speech hating on progressives or progressivism? All this and more on advisory opinions. Local news is in decline across Canada. And this is bad news for all of us. With less local news, noise, rumors, and misinformation fill the void, and it gets harder to separate truth from fiction. That's why CBC News is putting more journalists in more places across Canada,

reporting on the ground from where you live, telling the stories that matter to all of us, because local news is big news. Choose news, not noise. CBC News. Well, David, the Supreme Court justices did everything they could to help me sell books, and I just so appreciate it. We're going to start with the leak to the New York Times memos from 2016 internal memos between the justices chambers. And if you go to the piece on the New York Times, it's like one of those fancy websites. And the first line you see is, in all black, the birth of the Supreme Court's shadow docket has long been a mystery until now. And And the claim is that these memos related to President Obama's clean power plan are the birth

of the shadow docket. And just to remind everyone, the clean power plan was part of the break, as we've talked about it, David, of presidential power of sort of rule by executive order. Obama has his pen and phone comments in 2014. He has his year of executive. executive action in 2015, where he says, like, if Congress isn't going to pass these laws, I'm going to do stuff through executive action. I think he has 88 that year. And in 2016, the clean power plan comes online. This is to address climate change and to force coal-powered plants to, you know, change the way they're doing things. The lawsuit hits the lower courts in 2016. And the question for the Supreme Court on the interim docket, the shadow docket, the

emergency docket, is should that regulation go into effect while this case is pending? And David, we've just big picture for a second, right? On the one hand, if a president or a state or Congress has some wildly unconstitutional law or policy, we do not want that to be in effect for two years while we litigate that case. On the other hand, when presidents serve four-year terms and a duly elected president has a policy that he ran on that he then enacts through an executive order while president, it would also seem really to undermine a system of democratic self-governance if that policy cannot go into effect for two years while he's president so that the people don't ever get what they voted for. This is the interim docket problem.

Someone has to decide what the status quo is going to be for those roughly. two years while litigation is happening. And there's no black and white answer. We can't just say, like, well, the status quo is it never goes into effect until it's done, or the status quo is it always goes into effect until it's done. I don't think that works either. And just relying on the lower courts also seems weird to me. I've heard that from some people, this idea that like, well, whatever the district court and the circuit court decide, the Supreme Court shouldn't get involved. I guess my question is like, on what principle they are the head of the judicial branch? There's nothing elsewhere we say that the Supreme Court doesn't weigh in on these.

And of course, there are certain laws that Congress has said go straight to the circuit courts, for instance. So there'd be no appeal if we say that the Supreme Court doesn't have an interim docket. I feel like that's sort of just motivated if you don't like the Supreme Court or you don't like the outcome of an interim docket decision. You don't think the Supreme Court should have weighed in on it. But like, we have three layers of federal courts. I don't know what the principled reason is for saying we shouldn't have the last layer for these types of cases. A lot there. I think a couple of things have to be true at once. One is there has to be some emergency docket. Like, the idea that there cannot

be emergency docket, just defies reality, defies the core structure of our system of government. There are things for which the Supreme Court is going to have to weigh in and weigh in sooner rather than later and sometimes weigh in before. The case is completely done. It's just going to have to happen sometime. So think about it like this. Let's imagine you had a Korematsu 2. And you had a, the president decides we're going to intern an entire race of people in the U.S. just hang with me for a second. You would not be saying, and we would not be saying, if by some craziness, a district court and a circuit court upheld the internment order,

that the Supreme Court needs to just put a pause on that and wait for 18 months or a year or two years or however long until this works through the system. No, there are things that we can easily say would be important enough, urgent enough, that the Supreme Court should intervene. And then there's a lot of times they shouldn't. And so we really are making judgment calls, and your limiting principle cannot be the emergency doc is great when I win. And the Supreme Court needs to intervene when I want it to intervene. That can't be the principle. The difficulty of articulating that line of when is it absolutely

the case that we need the court to weigh in versus when can it wait. I've not heard a good, clearly articulated basis for saying, here's how, here's how to know one case is on one side of the line, and here's how one case is on the other side of the line. But I will say this, and we're kind of about to jump into the text of the actual article, but I will tell you litigants before a court, here is a great way to get the court to jump in, is if after you lose a case, you say, well, essentially, we got to use this regulation for so long and it had so much impact on the economy, it accomplished its purposes no matter what. And so the loss wasn't really a loss. What you've just told the court is that if you want to vindicate the underlying constitutional interests, they need to

intervene sooner. Because if you say, after you've lost a case, well, we got what we wanted anyway. and what you wanted was the very thing that was the unconstitutional or unlawful or illegal aspect of the statute, what you've just broadcasted, which is something that happened during the Obama administration. In the article, there was a discussion of how the court seemed to want to move quicker because they were referring to interviews granted by Obama administration officials where they had said, in response to previous court losses, that essentially, well, we accomplished the objective anyway. I would submit that was a really unwise thing to do because when you're talking about injunctive relief, the consequences of granting or not granting the injunction are part of the legal analysis.

And so, yeah, I found that very interesting. And we can talk, and I'm sure we will, about is this the start of the shadow docket or emergency docket or not. But I did find it very interesting that given that back and forth, give and take, one factor that could push the court into action is implying their previous cases or previous decisions were essentially ineffective. Okay, so we need to break this up into a few buckets. One, who were the good guys and who were the bad guys

in this case, which is part of the New York Times narrative as well, that the conservatives use an unprecedented tool in their toolkit to stop the clean power plan from happening and that the conservatives are the bad guys and the Obama administration is the victim. is the victim of this new tool weaponized against them. The second bucket is whether, in fact, this is a new tool, whether this is the birth of the interim docket.

And number three is the leak, right? Like, what does this leak mean for the court at like a meta level? Okay. So let's start with bucket number one. As I said, this is about the clean power plan. I agree. And in fact, there's the quote from the chief justice in the memos that says, and I will read it to you, I recognize that the posture of this stay request is not typical. That is from the

Chief Justice when saying that they should do it anyway. But I think the part that the New York Times doesn't really dive into is that the regulation from the Obama administration was not typical. And so, you know, there's a chicken and egg problem here, David. We see the rise of the interim docket at the same time that we see the rise of government by executive action and presidents acting without clear congressional authorization and not really working with Congress to pass laws anymore. That is not a coincidence to me. That, in fact, is exactly the story that you would expect if presidents are doing new things with presidential power. And my argument all along has been that when Obama does the pen and phone thing, that is a break with what came before it.

Not a complete break. That's not to say presidents weren't using big executive. power beforehand, but it is this inflection point. And so if presidents are doing new things that are different vis-a-vis separation of powers with Congress, you would expect the courts to have new things vis-a-vis that as well. And David, this gets to your point. This is from the Chief Justice's memo. The comments of the EPA administrator herself indicate that without immediate action from this court, this rule will become functionally irreversible, like the ill-fated Matt's rule before this court can test its legality. When a BBC interviewer asked Administrator McCarthy whether the administration's climate change policies would persist, if a new president

adopted a different view, she responded, quote, on issues like the clean power plan, we are baking that into the system. This is not a policy debate. This is now a rule that's finalized, and it's going to be solid no matter what Congress, what signals Congress wants to send. But more importantly, every state is actively submitting going to be submitting their plans. They're working on them now. That was a December 2015 interview. And the chief's point, as he continues on and says, I am of the mind that a rule designed to transform a substantial swath of the nation's economy

should be tested by this court before it is present. as fate accompli, but it seems that the EPA is sufficiently confident of this rule's immediate implications that not even the combined efforts of Congress and the president, a new president, could reverse its effects. The agency, it would seem, has made a compelling case for the applicant's claim of irreparable harm. Yeah, that's what I was talking about. So if we're going to talk about sort of the heroes and villains of the story. For me, the villain was the Obama administration. And specifically, not so much that they tried these regulations.

I mean, I have a lot. Well, let me put it this way. Yes, that they tried these regulations. And that whole pen and phone sort of movement. And there are a lot of us who were jumping up and down at the time and stamping our feet at the time that this was going to set, pretty dangerous precedents. And I think we're pretty darn right about that. But I think that the posture of a very aggressive regulatory change that, as Justice Robert said, would be half a

trillion dollars. I mean, what, $480 billion or something like that, effect on the economy? With Obama administration officials essentially crowing that previous changes, regardless of their legality, had been effective, led to, I mean, and this goes back to our, point, judges are people too. They're human beings. And if you're saying, ha, ha, they didn't accomplish what they wanted to accomplish. In our previous case, guess what? They're going to say, well, I think it, let's figure out a way to accomplish what we wanted to accomplish. And so to me, there are a couple of things about that story that really stick out. But when I was reading it, my eyes sort of popped out of my head when I got to that point of the memo because I was like,

practicing lawyers should read that. Practicing lawyers read that memo and know that there are ears listening and eyes watching when you're running around crowing and bragging about what you've been able to do and accomplish. And so that was just, it was almost like this bold face, 24 point font, how important it was to me as I was reading that account. David, just one more note on this and then I want to move to Bucket 2. There's all these incredibly long memos going back and forth. You know, the chief, the conversation and then Breyer's like, well, we could do this instead. And the chief's like, here's why that won't work. And then Kagan's like, yeah, but, so do Mayor, Alito. They're all jumping in. And I just love that the very end memo is from Justice Kennedy's chambers. The memoranda from the conference have been very helpful. In my view, a stay would be granted in four to six months in any event and fairness to the parties' councils that we should grant it now. Therefore, I agree with the recommendation of the chief that the stay. application be granted, period. So like pages and pages of all these, I mean, there's citations.

These are written like little mini opinions. And then, and then in the end, AMK is like, thank you all for your advice. As the fifth vote, I've decided, we can end this now. And that's the end. And it's over. That's what a 5-4 court looks like versus when you have my 3-33 court. It's not just that it's 3-33 shifting along the spectrum. It's a three-body. It's a three-body. problem, David. And so it's constantly of like changing who is the last word in the conversation. So you don't have this anymore where everyone else is trying to persuade Anthony Kennedy. And then Anthony Kennedy raises his hand and says, aha, I've decided. And the conversation stops. That is not how the court works when you have three shifting constituencies, if you will.

True. And it really did have a kind of a hint, even though Roberts was the chief justice here and really the initiator and driver of the conversation, it really did have the sense that it was Justice Kennedy sitting on the Iron Throne. Exactly. And it was. This is how everything worked in this era of the court. And I guess my argument is that like that actually seems worse to me than the current iteration. I'm not like the other eight justices end up being advocates to Justice Kennedy. Like you have oral argument, and then you have a secret oral argument among the justices all to persuade one justice. I would argue that having, you know, many swing justices is a healthier way for a nine-person body to operate. At some points in the Justice Kennedy era, it almost just got ridiculous

because you just felt like all the arguments were aimed at one person, especially on these, you know, very polarizing cases. Totally, totally agree on that. And in the background, by the way, it became who he would hire for clerks. There were battles over that because people wanted to make sure the clerks that were in the room, the last people to talk to. I mean, it got, there was a lot going on. Okay. Bucket number two, David, is on, was this the birth of the shadow docket as we understand it?

I think you have to change the definitions of several words in that sentence for it to be accurate. And again, this is the New York Times headline. The birth of the Supreme Court's shadow docket has long been a mystery. that sentence to be correct and for this decision, which was 5-4, to issue the stay, preventing the clean power plan from going into effect, in order for this to be the birth of the shadow docket, you either have to change the word birth to not mean birth, to not mean the start of, or you have to change the definition of shadow docket to be limited to presidential actions. Because there's this line in the story that says, to be sure, the court sometimes granted

emergency applications from death row inmates and in fast-moving election disputes, implying that that had been the only use of the interim docket before this 2016 moment that is the birth, right? But that's just not remotely true. So Texas passes anti-abortion restrictions, the ambulatory cessation. The ambulatory centers and admitting privileges like those, you know, there were a bunch of those different parts of that law, David. The left immediately sues to prevent those from going into effect while their lawsuit about the constitutionality of those laws works its way up. And the Supreme Court, six three with the conservatives on the losing side on the interim docket, shadow docket prevents Texas's law from going into effect, both in 2014 and in 2015. So we're talking

two years before this 2016 birth happens on abortion. That's not death penalty. That's not an election dispute. Those aren't fast moving. You can never take it back type cases. And also what was happening at the same time, David, a bunch of states were passing anti-gay marriage laws and a district judge, for instance, in the state of Utah, though this happened in other states as well, prevented that law from going into effect, arguing that it violated the 14th Amendment, right? They're previewing Obergefell, but the Supreme Court hasn't actually ruled on Obergefell yet, and so the district court's getting sort of way ahead of its skis there. 9-0. The Supreme Court weighs in on the interim docket to prevent that district court

decision from going into effect as what would become Obergefell makes its way through the courts. David, I just don't see a defense of the New York Times' piece here that their narrative, that this 2016 moment is the birth of the shadow docket. I think the left loved the shadow docket the year before we're talking about when it was on abortion. So let me, let me steal man the headline chosen by my colleagues here. I think that the way that you would describe it, I think that they would defend it in the exact same way that you described the Obama Pinn and Phone moment. That prior to Obama's PIN and Phone, the PIN and Phone declaration, there were instances that occurred before where you would have extreme executive action. There were instances, but then from PIN and phone was an inflection point.

And PIN and phone represents the inflection point. That really is the launch of the current controversy over. executive power. The way to sort of think about that approach to the headline was, yeah, there were instances before, but this is the launch of the modern era of the shadow docket, which is related to the overwhelming number of executive actions that we are dealing with. So that's how I would, that's how I see it. Yeah, things happened before. They should have included abortion in that list, but this was an inflection point. This was, this is where we went from old era to new era was, that's how I would, that's how I would defend the headline. Okay, let me push back on your steel manning,

which is first of all, if you are having an honest conversation about the birth of the shadow docket, you at least have to acknowledge the court using the shadow docket in culture war disputes like abortion and gay marriage in just the couple years before we're talking about here. And the reason that you have to include them, I think, is because there's a totally different narrative that I think develops when you acknowledge that starting in 2013, the shadow docket is being used for extreme partisan laws on culture war issues across the political spectrum, right? Red states are passing abortion restrictions, a Democratic president is using executive action on climate change, and from there, I think you have a narrative that the polarization

of our politics and the negative polarization was taking over the democratic process. And so the court is stepping in in a new way. But it has nothing to do with the chief versus Obama, which is what the piece is about. And that that's what starts the shadow docket is the chief really hating Barack Obama and wanting to like teach him a lesson or something. I think when you exclude that he had just voted to stop Texas's abortion laws from going into effect, you get a very different view of what the chief is doing. He's trying to stop extreme negative polarization laws from going into effect regardless of which side is doing them,

but the New York Times ignores when the chief is doing it against conservatives and instead says that it starts when he does it against liberals. Wrestling with that abortion question, same-sex marriage question, I think absolutely fair, absolutely fair. but I also do think we did cross an inflection point at the same time. And I think, again, if we're going to go back and we're going to talk about this inflection point and the court, I'm putting the inflection point squarely on the political branches, squarely on the political branches. And the one thing that I would say, Sarah, and I was going to ask you this,

because you've been doing so much work on sort of the insider discussions of the, you know, the court's insider process and everything like that. As you were reading the memos, did you have this, I'll just tell you. this was my feeling. I thought it was oddly encouraging because they were just, they're very thoughtful, very, like I'm making a serious legal argument here. There was not a hint in my view of like, as you're talking about it back and forth, they're extremely civil, even when they're talking about how what they're doing is different.

That's another thing that is, you know, that is sort of in the, in the score column for this is the start of something new. if you read the memos, they are talking about and they do use words like unprecedented. And so I do think that as I was reading those memos, I thought, this is actually giving people a glimpse at a functioning branch of government that's having a very serious intellectually important conversation about a very serious legal and constitutional issue. And I don't know, I found reading it, A, fascinating and B, quite reassuring, to be honest. I had two weird reactions. One, I think the Justice Kennedy dynamic was bad for the court because it's clear that all the memos are just to try to see where Justice Kennedy is going to turn out. And then on the flip side of that, I think the influence of Justice Breyer is missed on the court. You know, he jumps in in a very practical way in these memos and is like, what about if we do this? It's kind of a middle ground. Now, in this case, that doesn't prevail.

But when you see the role he played sort of relationally to the other justices, I thought, oh, I really still want him on the court. I mean, I've heard so many stories of Justice Alito and Justice Breyer walking back from conference together because their chambers were next to each other and the relationship that they had. And, you know, in the book, I tell the story about Justice Breyer and Justice Thomas and the story of Justice Breyer being robbed in Nevis. like Justice Breyer is a very practical justice, very congenial, high EQ, and that comes through in the memos too. But David, let's get to Bucket 3, the leak itself. This isn't the Dobbs leak in terms of

its impact on the news cycle or the implications for some big culture war legal topic, but it is a massive leak from the court. These are internal memos that no one would see for decades. until the papers were released. And, you know, as folks have pointed out, the memos from all the justices are, you know, on the letterhead from chambers and then initialed by the justice, which, by the way, fun fact, if the justice themselves signs it, it will be signed, you know, Sam, John, whatever. If you see SAA slash. B-S-G. That means the clerk is signing it on behalf of their justice. So all of these are signed with initials, meaning that it was actually the clerk who sent it out. And you can tell who the clerk is,

because they have their initials next to it, except for one of the memos. And that is the one from Justice Sotomayor. It is not on letterhead, and it is not signed or initialed. People have argued that this means that the person who leaked it had access to the draft of Justice Sotomayor's memo, not the one that was received by the other chambers, because if it's received by the other chambers, it would be initialed. Therefore, it has to be someone inside Justice Sotomayor's chambers. Interesting speculation. Interesting. It's a little hard to argue with. No other chambers would have this version of Sotomayor's memo, but of course Sotomayor would have that version and might not have the version that was initialed and sent out to the other justices, if that makes sense,

because they would have sent that out, right? They wouldn't have kept it. Because the interesting question to me is, if it doesn't have the initials, is it the memo that was sent? It was not. Yeah. Yeah. So this is not the memo that was sent. Correct. So the question, yeah, so let's leave aside, does this mean? mean that this was Justice Sotomayor, does this mean that we're reading the memo, that this was

the same memo that was sent, just not the initialed version of it? I think that's very likely, given it's polished. It's, it looks like the rest of the memos. It just doesn't have the initials, and it's not on the letterhead. Now, in terms of who would have access to this, any of the clerks from 2016 to today, so 40 clerks would, and in fact more if she's sharing any clerks with now retired Justice Breyer, because remember he gets a clerk and it's shared with the current justice. Some of those will be shared with Justice Sotomayor. So we're talking 40 to 42 or so clerks have had access to all of these memos. Of course, the justice, I discount that entirely. No way, no how. No, I don't, I discount that too. Yeah. But like, David, unlike staff where

potentially you could maybe get your hands on the draft of the Dobbs leak, for instance. Not this. This is now limited, I think, to clerks only. Not even administrative staff. I mean, it strikes me if you're talking about something like this, it's like the kind of person who in a law firm would have access to the brief bank, which could be everybody from the actual attorneys to paralegals to secretaries, they're certainly IT professionals. Sure, yes. You know, the JA, the judicial assistant, in theory, could.

I'm just, David, you're right. This is not like black and white, but it's getting pretty close at this point to saying, I think this sheds light on the Dobbs League, I guess, is my punchline. Let me put it this way. Eyebrow raised. Like the Dwayne, the Rock Johnson's, single eyebrow going up? Yeah, definitely. No question about it. Well, David, when we get back from

this break, we've got a lot more Supreme Court news to discuss. Justice Sotomayor apologizing, Justice Kagan screaming, Justice Alito not retiring, Justice Thomas blaming progressives for destroying the country. All this and more when we get right back. All right, David, I don't know, let's just tick through these. One, remember we talked about the comments that Justice Sotomayor made where she was talking about Justice Kavanaugh's concurrence in Pardomo and said that given that his parents were professionals, he maybe didn't know anyone who'd ever worked an hourly job. And we said, David, that we thought that was not something she sort of meant to say. That wasn't like her intention. We basically said that we thought she would apologize for it.

And she did. She said they were hurtful comments. She had apologized to her colleague before putting out her public statement about the apology? 10 out of 10, no notes, David. I think it's a great lesson for every other branch to see how you work together. Yeah, I mean, totally. This was a, it was a slightly disturbing news story that turned into a good news story, which is, we make mistakes. I mean, gosh, we talk so much.

If every syllable I uttered was a national news story, man, I'm. I'd be making more public apologies because I'm sure there are things that I've said that I don't even I don't even register and remember them. But if they were brought to my attention, I would be like, did I really mean that? So good on her. I thought it was a great act of public humility and just the way people should interact with each other. I really appreciated it.

Next, there is a story in Fox News coming from an excerpt of Molly Hemingway's book on Justice Alito that after the Dobbs leak, you know, there was about a month between the early May day that the opinion leaked and the actual day that they released the decision that Justice Alito asked the liberal justices who were writing the dissent, Justice Breyer, to speed it up because of the threats that they were getting and that as soon, you know, people felt like maybe they could change the decision if they, for instance, assassinated Justice Kavanaugh, the sooner the opinion could get out, the better. And the story is that then Justice Breyer was very open to that possibility. Justice Kagan screamed at Justice Breyer shaking the walls, telling him not to do it.

David, this is all anonymously sourced. You know, what do you think? Okay. Is it a metaphysical physical possibility that this is true? Do I believe that Justice Kegg? I mean, you know, you've got the obvious hyperbole in the story itself. And then when you hear sort of that obvious hyperbole in the story itself, it makes me, you know, raise another eyebrow now, Sarah. And I'm extremely skeptical of that. Let me just put it that way. I am actually more than willing to believe that Justice Kagan raised her voice to Justice Breyer. What I do not believe is that the clerk whose office is adjacent to Justice Breyer's office actually knew what the screaming was over.

You know what I'm saying? Like, maybe the screaming was because she really wanted that footnote to stay in and he was taking it out because he was the principal dissenter at that point, the most senior justice who got to assign the opinion. And that's what she was screaming about. Maybe she was screaming because over the last, you know, 10 years together, she was sick of X, Y, and Z thing that they'd had running

as relationships tend to work that way. I just don't know that I believe that she was screaming at Justice Breyer because she wanted to encourage more violence against the conservative justices in the majority, which is what the story claims to say. I am extraordinarily skeptical. Just extraordinarily skeptical. Okay, David, next up.

Justice Alito tamps down speculation that he's retiring. Again, I'm so glad he received my muffin basket where he allowed that speculation to continue for the whole first week of my book being published. I got at least three media hits just on that alone. And then he waited till Friday night, the second I got off the CNN set with Jake Tapper, about this issue. And then it was confirmed from the court that he was not going to retire this summer. David A, I don't think either of us are surprised.

We had said that, like, yeah, there's some evidence on both sides, but gut reaction, he's not leaving this summer. But are you, I guess I'm a little surprised that he said it, like that the court confirmed that he has no intention of retiring in July. That's a little unusual. Yeah, that is unusual. And I'm also kind of intrigued by it because on the one hand, I was not predicting it. Like neither one of us were in the position of, oh, yeah, we think he's stepping down. On the other hand, it's almost like a kind of six-year commitment because there is.

is a chance that the Republicans will lose the Senate. It's a chance. And if the Republicans lose the Senate, there is no way if, like, Thomas or Alito decided to step down in those last two years that they're going to allow. No way. I mean, it's just not happening, not after Merrick Garland. And then if a Democrat wins, would Alito step down during a Democratic presidency? And so you could have right here, it's like signing a two-year extension with an option on four. I mean, something like that. And then if a Democrat wins re-election, it's a two-year extension with an option on eight. You know, it's very interesting just when you sort of think out the mechanics of it all.

And it also just shows how Supreme Court majorities aren't necessarily as permanent as you might think. Because if you have a Democrat, Democrats win the Senate and then have two terms. in the presidency, which is not a crazy thing to assert at all. You know, you're, it's a very, it's, it's not surprising at all that he's staying, but it is very interesting. I also think of the timing. There had been speculation about Justice Alito retiring for months. I think we started talking about it in February. You know, it's a midterm election year. That's what we do. We speculate on who might step down from the court. It was not until President Trump went out and gave an interview encouraging Justice Alito to retire that you have Justice Alito pushing back. And so it goes back

to that EPA administrator going on TV and bragging about how, you know, the chief justice can make whatever decision he wants will still get what we need out of this. You know, Mr. President, that might not have been your best move. He, you know, Supreme Court justices do not like to be bullied, they have life tenure, they are not interested in your thoughts on whether they should retire. And it's why you see, for instance, Senator Cornyn was asked, you know, do you think he should retire or something? And his only quote was, I don't give advice to Supreme Court justices. That's the way to get a Supreme Court justice to retire. That's such a smart response. But, you know, this is so consistent. He really, Trump really does try to treat judges the way he treats Republican members of Congress.

and they're just, they're almost like two different species of human at this point. They're so different. It's constantly, relentlessly worked with members of Congress. It has not worked at all with members of the judiciary, especially the Supreme Court. So, yeah, I think that's an interesting insight, Sarah. All right. Last thing, Justice Thomas gave a speech of the University of Texas to commemorate the 250th anniversary of the Declaration of Independence. There is a long excerpt in the Wall Street Journal.

I'm going to read a little piece of it, but I hope all of you go and read it to sort of make your own opinions about it. The Constitution is the means of government. It is the declaration that announces the ends of government. The Constitution achieves this purpose by protecting our natural rights and liberties from concentrated power and excessive democracy. Our Constitution creates a separation of powers and federalism, truly for the first time in modern history, to prevent the government from becoming so strong that it threatens our natural rights. Federalist number 10 proposed the idea that the great threat to our rights comes from majority faction. As we meet today, it is unclear whether these principles will endure. At the beginning of the

20th century, a new set of first principles of government was introduced into the American mainstream. The proponents of this new set of first principles, most prominently among them, the 28th president, Woodrow Wilson, called it progressivism. Since Wilson's presidency, progressivism has made inroads in our system of government and our way of life. It has coexisted uneasily with the principles of the Declaration. Because it is opposed to those principles, it is not possible for the two to coexist forever. And he goes on to define progressivism, to talk about the threat that it poses. And David, it's the exact same thing that we've been talking about on this podcast,

that the progressive era, and again we're talking Teddy Roosevelt, Woodrow Wilson, the eugenesis. It was the idea that we needed experts to decide these things because voters couldn't be trusted. Congress that represented the voters couldn't be trusted. Those were like dumb, dumb farmers who didn't know anything. And that we had reached the end of history, that science had the right answers, that experts knew how to solve our public policy programs if we would just get the voters out of the way. and we're at the end of that 100-year experiment. The headlines, however, David, about this speech from Justice Thomas were all about

how he hates progressives, and many of them fail to mention the fact that he's talking about Wilsonian progressivism, not whatever like blue-haired person who calls themselves a progressive now who doesn't know who Woodrow Wilson was, what they stand for, whatever that may be. This is always a challenge when you talk about something that has a colloquial meaning and a technical meaning. So, for example, you get this a lot when you talk about liberalism. So when you and I say I talk about liberalism, we're often talking about sort of the classical definition of small L liberalism, which is like a rights-based democratic form of government. There's also liberalism as in the Democratic Party is liberal compared to the Republican Party being

conservative, which is kind of a way we talked about liberalism and conservatism, meaning liberal as left-leaning as opposed to liberal as essentially believing in the principles of the American founding. And similarly here, you have progressive, which could mean everything from I vote for Bernie Sanders and support, you know, single-payer health care. Or I want, you know, I'm pro-Palestinian, which codes, quote, progressive. And sort of thinking of progressive as meaning on the left side of the spectrum versus progressive, as really in many ways almost a post-liberal political philosophy as embodied by a lot of the ideas of Woodrow Wilson.

And progressives, if you're thinking Thomas is going after that, or Thomas is going after you, modern progressives, say you want single payer health care or you're pro-Palestine or whatever, if you think that Thomas is going after you, no, no, no, listen to the speech. He's going after Wilsonian progressivism. and I don't think that's the kind of progressivism you want to circle the wagons around. I mean, because remember, this is the dude who resegregated the federal government.

This is the dude who threw hundreds of political opponents in jail. So in many ways, Wilsonian progressivism, in my view, is early post-liberalism in a lot of ways. And that's what he's talking about. He's not talking about

if you voted for Bernie Sanders, Clarence Thomas, Hatch you. That's not what this was about. You know, and look, there are definitely people on the left and the right today, right? This is common good constitutionalism. This is pro-administrative state. Those are all taking pieces of progressivism, Wilsonian progressivism, today. But the idea that it's like progressives, I don't really know what progressives are today. Like that's a, it's a hodgepodge of different

policy desires. That's not what this is. This is a process argument that the progressive era folks made to replace Congress with experts and sort of who knew the common good, depending on which way you want to think about it, right? The liberals wanted the experts to, you know, do science like eugenics, the conservatives wanted the experts to do, you know, Thomas Aquinas. I don't know. But regardless, once again, sort of taking the worst faith reading of Justice Thomas's speech here, like blaring in all the headlines, I actually think the speech is not particularly controversial. It's sort of like well accepted by most historians as to what the purpose of the progressive era was. Again, whether it's Teddy Roosevelt or Woodrow Wilson or Oliver Wendell Holmes, like all of these guys

thought they'd reach the end of history. They thought they, you know, weren't finally right about everything, just like we think we're right about everything. No, exactly. I mean, Wilsonian progressivism is a different thing, I'll just say it again, than being left of center in the United States right now. Those are not the same thing. And it just, it shows you how difficult language can be, because a lot of these labels like liberal and progressive, the way we use them in this colloquial fashion, they're in response to, okay, well, the conservatives have made the word liberal toxic. You know, we've lost a bunch of presidential elections. So we can't be liberals anymore. The word liberal is toxic, we're going to be what? And conservatives often fight over what the word conservative means.

So you have a large number of people who are about as opposite from Reagan conservatism as you can imagine calling themselves the true conservatives. And those people who are still in line with Reagan conservatism, what conservatism was for a generation or more. Now, we're the rhinos. So these language battles, which are sort of pop culture politics, are not what Thomas is talking about here. That's not it. He's going a layer deeper the way we often do on this podcast when we use words like liberal. When we're using words like liberal on this podcast, gosh, 90% plus at the time we're talking about a liberal form of government, not a slice of the political spectrum.

Well, the excerpt in the Wall Street Journal ends with him quoting at length from the Gettysburg Address. And it's beautiful. Honestly, every time I read the Gettysburg Address, it gives me chills. It never gets old. It never gets commonplace. Never does. Never does. The foundation, the moral foundation of the second founding, Gettysburg Address. Sam Waterston, you know, Jack McCoy from Law and Order, who is the voice of Abraham Lincoln in the Ken Burns documentary, will always be Lincoln to me. And his, version of the Gettysburg Address is my favorite. Though if you, you know, read from people at the time, Lincoln probably had a relatively high-pitched, unpleasant, like unmelodious, I guess, is maybe the

better term, voice. But I think Sam Waterston captures that pretty okay. He doesn't have a super deep voice. So I appreciate it. You know, the Lincoln for me is Daniel Day Lewis. That movie is spectacular. And he goes for the reedy voice. You know, what's interesting to me, it made me admire him more. because in a weird way, it betrayed like this guy, this giant of American history had like a personal quirk that was annoying to people, to some people, sort of like this high, thin voice. So it was sort of like we're all, even the giants, like even the giants, they have the quirks or personality ticks or characteristics or whatever that just kind of make us more vulnerable and human.

And I just appreciated that about the portrayal. David, we get back. We're going to talk to our first sitting governor. We are going to talk to the governor of Oklahoma about the McGirt case, which we have talked about a lot on this podcast. So we're going to explain McGirt and then we're going to welcome Governor Stitt, and I'm super pumped. All right, David, we are going to talk to Governor Stitt about McGirt versus Oklahoma. This was a 2020 decision. 5-4 with, of course, Justice Gorsuch, writing the majority opinion. that held that the historic reservation of the Muskogee Creek Nation was never legally disestablished by Congress, meaning it remains Indian country under federal law, and that about 40 to 45 percent of Oklahoma, including Tulsa, is legally reservation land. That means that the state government does not have authority over that land. And in the McGirt case, it was about a criminal conviction that was invalidated because, as the majority opinion said, if a Native American commits certain major crimes in Indian country, only the federal or tribal courts have jurisdiction

and not the state. David, it's been six years since McGirt. And everyone was like, OMG, this is going to be chaos. I use it as my example of sort of Justice Gorsuch being the Yolo Justice. Like, that's not my problem. Congress can go pass a law. off they want, you know, the political process can work that out. My only job was to tell you whether it was still reservation land, and it is, bye. So here we are six years later. David, well, we'll welcome the governor, but I guess I do feel like, yeah, it's been some chaos. I don't think there's much question there's been some chaos here. And I'm glad you brought up the yellow justice because Ian McGirt has an outsized role in AOL lore, because that was the case in

which the term Yolo Justice, which everyone uses now nationally, all 340 million Americans, was born in our McGirt discussion. Yeah, I don't think there's much question, especially if you read the governor's op-ed in the Wall Street Journal. And as we talked through some of these issues, that there's some stuff about this that creates challenges and problems. And the thing that's interesting to me is there are political branches of government that can do something about this. and what have they been doing is a very good question to ask. And so I'm looking forward to getting the governors and hearing the governor's answer to that question. Let's get him in here.

Governor, Stitt, thank you so much for joining us. And I mean, you're now the governor over at least some part of Oklahoma. Yeah, well, thanks for having me. It's an honor to be with you and talk to all your listeners. Tell us, you know, we've run through this McGirt case. We've talked about it a lot in the context of understanding Justice Gorsuch, but you've written this Wall Street Journal piece. And actually a fun story that I like to tell that I actually put into my book about the Supreme Court is your solicitor general actually went out and got red hats that said make Oklahoma a state again. Yeah.

Well, it's a fascinating topic. And I'm glad you're covering it because I think Americans, I just find this really interesting, this idea of what is a reservation and, in my opinion, why Oklahoma is not a reservation. And so just to back up a little bit, you know, in the Navajo reservation, which is part, which is out there where, you know, next to Arizona, it's truly a reservation. It's been that way for over 100 years. The land is held in reserve. It's not fee simple title. It's all held in reserve. And the state of Arizona doesn't patrol it. They don't build bridges or roads or hospitals or schools.

And that's why when you think about what Gorsuch did to Oklahoma, it has real consequences because he came and said that all of eastern Oklahoma, including Tulsa, is a reservation. After we've been operating one way for over 100 years, and we obviously, it's all divided up. The land's been bought and sold 100 times by Indians and non-Indians and Hispanic. and Asians, and we're all living there as Oklahomans, and now it's really just a, it's just a jurisdictional nightmare what to do next. I'm sorry, one thing, Governor, that you know, when you're talking about the difference between a reservation, and I'm, I don't like to brag, but I kind to consider myself an expert on the Navajo Reservation after watching Dark Winds on Amazon Prime for

several seasons. So, yeah, ask me anything. But I would say, one thing that I do think is very interesting. You talk about reservation, not a reservation. You know, when you're talking about a reservation, that's still America, but it is not specifically under the state sovereignty. Explain the difference as you're, as you understand it. Yeah, you know, it's called a domestic dependent sovereign is what it's called technically. And you're right. The state of, you know, the Navajo Reservation, they don't pay any taxes. If you have a job and you live there, they don't pay any taxes of the state of Arizona. Their zoning's different. They can print their own license plates on their cars if your, if your car is based on the reservation. So a lot of things like that. But what they also don't tell you

is the state of Arizona doesn't patrol it. They don't build any roads on the reservation. It's basically a federal enclave, right, that's set aside reserve for the tribes. And that's why it's such a different situation with Oklahoma. Like, think wherever your listeners are from, if they're from Cleveland or Washington, D.C. or Baltimore or Manhattan, it would be like coming in after a hundred years and saying, well, Indians were here first. And so now they don't have to follow zoning or taxation or the criminal code. Our district attorneys do not have the authority to prosecute those crimes anymore. And that's kind of what we're talking about that's really thrown us into problems. And I'll give you a real life case. There were three guys that was a drug conspiracy.

committed the same crime on the same day, a white guy, a black guy, and an American Indian. And the two guys are in prison and the other one is not in prison because of his race. And what I like to remind people, an Indian in Oklahoma looks like me. I'm an Indian. I've got my Cherokee card. I'm a descendant from my, you know, it's a hereditary in the Dawes rolls, which we can go through. But that's kind of what an Indian is in Oklahoma. so it just makes no sense. It's not fair. And that's why we're trying to make sure people understand this issue.

Isn't the answer to this, though, that Congress could change it tomorrow? You know, Justice Gorsuch, in his majority opinion, didn't say this is frozen in amber and that like, oh, well, you'd have to ratify an amendment to the Constitution. Congress can fix this, which was sort of his point. Congress made this deal. Maybe they struck a bad deal. Maybe people have changed the deal sort of naturally over time. But all he can do is, is read what the deal said on the piece of paper, and now it's up to Congress. So, like, you're a governor. You've got, you know, some representatives, a couple senators. If they agree with you, which I presume they do, why hasn't this been changed? The Supreme Court isn't the last word. Just like anything involved in politics, there's a lot of money involved. And the tribes are,

unlike other sovereign nations that aren't allowed to play in our political world, the biggest donors in Oklahoma politics are tribal governments. And it's very disappointing, but as far as the PACs, as far as they can run independent expenditures. And so really the politicians are just definitely afraid, as you know, of not getting reelected. And so, and then if you think about it all across the country, the senators in California don't want to do something that might, that their tribal governments are going to be pushing them not to do, right? This is basically an Oklahoma problem. And so we have tried to get even anything introduced. We should go back to the way it was since in 1907.

And this is very important. I don't know if y'all have talked about it. But before statehood, literally our tribal governments had to petition Congress to a lot to land out into fee simple title. And we decided we wanted to be one state. Teddy Roosevelt in the Enabling Act made us one state with all those rights and privileges. And we had to disband the tribal governments to become.

a state. And so we did not become a state with a reservation. But they didn't use what Gorsuch hung on to was that magic word. They never disestablished, but they did everything else. And we've been operating this way for over 100 years. So, Governor, when you're talking about that story of the three defendants, walk me through, say, criminal justice in Tulsa. You have three people, let's just make up a scenario. You have three people that they rob a bank. And they are immediately captured immediately, and you find out that one is Native American and two or not, what happens at that point? Or do you have sort of two parallel police forces in the town? What is happening as soon as you have seized suspects, you identify at least one of them as

Native American? Walk us through what happens after that? It's a great question because even on a traffic ticket, our law enforcement, Tulsa Police Department, when you walk up to the car, they're having to ask questions about your race. Are you an Indian? Then they're saying, well, let me just, let me, it's a different ticket or they just let you go or they say, hey, you're subject to the tribal police officers. So there are tribal police officers as well. But that, so that's the rub.

But you're exactly right. The law enforcement, if they arrest those three bank robbers, they're going to just refer the one, this Native American, over to tribal court or a federal court. But here's the problem. I have victims call in our offices all the time. There is no transparency. There's no docket. Nothing's online. We don't know where those cases are. We're hearing cases of domestic violence. Nothing's being prosecuted. It doesn't pencil for them. They don't own jails. They have to then coordinate and basically sign agreements with state county, state prisons to put prisoners in. And then the feds, here's a real live example. We had, We had an actual murder down in the southeastern part of the state. And I had our sheriff's department called me and they just said, we found the person. We knew who it was. We had a body.

We were doing all the investigation. We found out it was a Native American. So we called the U.S. attorneys. And this is midnight at Friday night. And they were like, yeah, we'll come. We'll see you on Monday morning. And they were like, what do you mean? This is a, we have an actual dead body.

You have to come to the crime scene. And they were like, yeah, we'll see you. Monday morning. So this is not what U.S. attorneys do, right? These federal prosecute, this is a state DA law enforcement, and now we're in this problem who actually can prosecute these crimes, right? And so that's a real live example when you talk to law enforcement on the ground in eastern Oklahoma. So what's your punchline? If the political process you say isn't going to fix this, the court has said it's peace. This kind of sounds like the governor of Oklahoma is in a bit of a sticky wicket. Well, I'll tell you, I'm the first governor that's had to deal with this issue.

And, you know, but here's the deal. The Gorsuch 5-4 decision said that it was for the major crimes only. Okay. And so the tribes, they said reservations still exist for the major crimes only. Well, the tribes are now pushing that. Well, if they exist for the major crimes, surely they exist for taxation and zoning laws and everything else. And so they have constantly been suing the state of Oklahoma. We have been winning at every case and limiting it. And just the Wall Street Journal article that I wrote was just bragging on the Supreme Court. They didn't take this, they didn't accept the Strobel versus the state of Oklahoma, which allows the lower court, the state Supreme Court, to rule, which is, yes, Indians pay taxes in Oklahoma just like everybody else because they were

arguing and all the five tribes signed amicus brief in support of this position that an Indian in Tulsa doesn't have to pay taxes, but every other race does. And I'm like, guys, this is so unfair. Kevin Stitt, the CEO of his company, doesn't pay taxes, but a single mom of another race does. And yet we're both neighbors driving on the same roads. Our kids go to the same schools. That's the problem that I'm trying to make sure people understand. It is a fairness issue. And we're dividing people based on race. And I just think it's un-American. So going forward, you've got potentially judicially limiting the decision. But let me ask you this, Governor. Let's say you're walking into the room and you're wanting to hammer out some sort of legislative compromise. What are some legitimate

things that you can see from the standpoint of the tribes that they would like to secure, that they would see as a necessary part of a compromise here? Or does it all really just have to go back? Is it is the ask that Congress or court reverse McGirt or Congress essentially take us back to Prima Gert, is there a compromise to be had here? Listen, why don't you, I mean, this is what wars were fought over. Like, why don't you go tell Ukraine, go tell Ukraine in Russia. Guys, just, just why don't you all compact and regulate and why don't you all both coexist and it doesn't work.

Like the tribes in their, in their movie, they go, we got our land back. This is ours. Okay. But now you've got, I'm the governor of the state of Oklahoma. right? And so I'm not going to give an inch when I'm governor to give my state away, right? So, so we just need clarification. Am I the state, am I the governor of just Western Oklahoma? Or am I governor for the whole state? And if you go back to how Teddy Roosevelt set this up in Congress in 1907 is we, in the enabling act, we were a state. We were set up just like every other

state. And we, they had to disband and they allotted out all the land that wasn't a result. reservation anymore. They did away with their courts. And that's what, you know, these academics, Gorsuch and Roberts are up there in Washington, D.C., fighting over the technical terms of, did they ever use the term disestablish? Well, that has real consequences to millions of people of law and order in the state of Oklahoma. And it might be a long way from Washington, D.C. But I'm, it's where I grew up and it's and this is nothing against Native American heritage. I'm proud of my heritage. We can celebrate that. But I don't think for a minute that we should divide our country based on race. I mean, what is race anymore? Now they're telling me it's a political subdivision.

It's what they'll say. And so because my six kids are all Indians. And then when they marry your six kids, now all of a sudden your grandkids are going to be Indians. There is no blood quantum, is what I'm trying to say. And this thing just keeps going and going and going. Governor Kevin Stitt, thank you so much for joining advisory opinions and for helping us keep the conversation about McGirt alive and well. We are the McGirt podcast. So we so appreciate you coming here. The Wall Street Journal piece was fascinating. We'll put it in the show notes so that everyone can read it. Thank you for joining us. Hey, thank you so much, David, Sarah. Thank you. So, David, I guess in the end, this seems like it was a bad policy. outcome for Oklahoma. But I'm not convinced that Justice Gorsuch's majority opinion in McGirt was incorrect. It might have been. I'm not convinced either way on that one. But I guess I am

upset with the answer that like, well, the political process is not going to change this because actually there's enough political momentum of people happy with this decision. And therefore, Congress isn't going to do anything to change the decision. That, to me, kind of sounds like the political process working the way it's supposed to. Yeah, it's, it was very interesting to me. That part was so interesting to me, Sarah, because there just seemed to be kind of no hope that there was a political solution to this problem. And if there is not a political solution to this problem, how significant is it to the folks who can do something about it? like who have the ability to do something about it within the political process.

Now, look, I mean, I'm fully aware that the political process is breaking down on very, very significant issues. But I'm just a little bit, yeah, I'm a little bit stumped as to why this feels so zero-sum. And, you know, that's why I asked, you know, the governor at the end, I mean, is there a compromise hanging out there? And on other issues such as immigration, you know, you can sort of say, right off the top of your head. I mean, if we had better border security and some consideration for dreamers and the equivalent, there's a lot of people who are like right there for that. I was just wondering

if there's any kind of compromise hanging out there. And it feels like it felt really zero sum, which was interesting to me. But I'm very glad he came on. But the equal justice under the law point, like that resonates with me. That's a great point. I don't want people treated different under criminal law based on their race. So more to come on this, guys. We're going to leave you with that. Marinate in it. Let's come back to it. And we've got our next episode of advisory opinions live at the University of Denver. So get excited because we're going to talk about the Fezic principle. I'm not even going to tell you what that is, but it's from the Princess Bright. Okay, David, that's it for us today. If you like what we're doing here, there are a few

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