Strict Scrutiny - Good News for the Indian Child Welfare Act

Episode Date: June 19, 2023

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. BrackeenDonate 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 [e-mail]. 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. Follow us on Instagram, Twitter, Threads, and Bluesky

Listen, we are all tired of the both sides media. And in this existential battle in which we find ourselves between authoritarianism and democracy, we need media that actually defends democracy and does so unapologetically. That's why you should check out the Midas Touch podcast. Hosted by three brothers with diverse backgrounds, the Midas Touch podcast releases daily and is your go-to source for news and commentary. See why our very own Dan Pfeiffer called Midas Touch's unique approach to covering the news a, quote, sign of hope in his latest book. And subscribe to the Midas Touch podcast today.

That's M-E-I-D-A-S-T-O-U-C-H. Know both sides, just the truth. Unapologetically pro-democracy. You can tune in for new episodes daily, wherever you get your podcasts. Mr. Chief Justice, may it please the court. It's an old joke, but when a 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. Hello, and welcome back to Strict Scrutiny, your podcast about the Supreme Court and the legal culture that surrounds it. We're your hosts. I'm Kate Shaw.

I'm Alyssa Murray. And I'm Leah Littman. And we seem to still be in the law part of the Supreme Court term, the all law, no vibes interlude, before we shift back to just the vibes. But we're going to live in our law era for a little while because it was so unexpected, so great. It hits 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 Holland versus Burkine. That was that quartet of cases involving the Indian Child Welfare Act. And in that quartet of cases, the court, by a 7-2 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 Tenth Amendment issues, and it rejected the plaintiffs' arguments on those fronts. It did decline, however, to reach the thorny equal protection and non-delegation issues that the plaintiffs had presented, concluded that the plaintiffs in this case lack the standing to raise those claims. And we could not be more excited to have with us today to break down this opinion, the incomparable Rebecca Nagel, 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.

Oh, thank you so much for having me. 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. 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 equal 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 & 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 equal 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 the last decade, if not more. Could you share that or just remind us kind of what went into defending ICWA in this case? 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. So I was a little shocked. I was pretty surprised too, actually. Why was I the one expecting the court to do the right thing? This is very strange. 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 of that. Hey! The court is a stop clock, not me, right? 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 requirements 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.

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's 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 breakup was having, in addition to its devastating effects on individual children and families. 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. Fantastic! Exactly. No. Just stop. from their families. Okay. Fantastic. Exactly. No. Just stop. No, no.

Straight up fantastic. Good boy, Neil. Good boy, Neil. I think one of the things that was hard to sit through in 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 60 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 our 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, as 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. 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 ICWA could be struck down.

Yeah. So about 10 years ago, there was a ICWA 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. So 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 ICWA down. And so it was 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 those 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 than the Affordable Care Act, but like,

Republican Attorney General haven't like given up 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. And these things don't happen in a vacuum. So as the assault on ICWA is gaining steam in the 2000s, it comes on the heels of a really concerted effort to limit the opportunity for family reunification in the traditional child welfare system. The Adoption and Safe 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 seven to two 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? One, not only did she write this, it seems she has a sense of humor. 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 chambers is listening

to the pod. If you are in the ACB 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's authority to regulate Indians must derive from the Constitution, not the atmosphere, end quote. Again, very vibes adjacent. But it's also kind of a sick burn where I think she's trying to sort of get in the Kagan girl squad. It is totally a Kagan-

It's a totally Kagan. 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, 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 in the Senate trial. Well, I'm just going to say it doesn't end well for the body man. That's definitely true in terms of the ongoing criminal proceedings involving one Walt Nauta. I mean, Judd Stone needs to rethink this. 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 going to play here with Justice Kagan. 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 ICWA 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 not a view that any other state has told us it shares. I don't know whether Texas's view are 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 ICRA does these terrible things

or whether ICRA doesn't do any of them. Isn't that really Congress's judgment that we're supposed to respect? Two parts, Your Honor. The first is I agree that those observations, those statements of Texas's views, have nothing to do with non-delegation, anti-commandeering or Article 1 challenges 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. Like arguments must derive from the Constitution, not the atmosphere. This is way louder than a subtweet. 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's 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 Judge Stone from the oral argument. General, I'm curious as to where you get those three categories. They're a normative description of what this court has in fact done. I mean, there's no place where we've said these are the three categories that define what the

plenary power means. 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. Judd with two Ds is now Judd with two Ls. All right. We also, I think, saw some flashes of more of that bad blood between, well, what we perceive as bad blood between Justice Barrett and ICWA 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. Okay, so those are some of the atmospherics about the opinion. And we're going to turn in a minute. Wait, wait, wait. Is that a burn on him? I mean, I think there's something going on. It's just like, I think they, you know, back to Fulton versus City of Philadelphia, like,

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, right? Given we were sort of saying we were surprised by some of the tonal choices. So either the kind of rhetoric or just her having gotten the assignment, gotten a 7-2 vote, you know, decided to pretty squarely uphold against all the challenges that are addressed on the merits, this hugely important federal statute.

So what did you make of all of that? You know, I think during oral arguments, Barrett really positioned herself in the middle. So you had justices, I actually the vote that I'm the most surprised by is Kavanaugh, but you had justices like Kavanaugh and Alito, who were saying things that again, aren't based like in the law and how it 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 real 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 textualists and claim to you know follow the constitution 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 we've seen Gorsuch. Yes, yes. And that was, I will be honest, like, like you were talking about how after oral arguments, you're hopeful. The moment that I was

like, oh, we're going to lose Barakin 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. I thought Barrett was maybe the fifth vote in this case. So then when I saw that she signed on to cash, I was like, ah, it's not gonna happen. So yeah, I mean, I think during oral arguments, she did really position herself in the middle. You know, this isn't the first case that she's authored in the arena of federal ending law and her time on the bench. So I think

we will see what the future holds. You know, the past few years, we've had some really big swings, you know, we had the McGirt decision, 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 had 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 I think that they they did that as much to like to win in front of the justices as sort of to have that media campaign that went alongside these challenges to ICWA. 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's both states like Texas and then the individual plaintiffs and then the sort of 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 can 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 public's and the justices perceptions of the stories in these cases. I think that that's true. I mean, I think I think when you looked at when the case was in the Fifth Circuit, you know, you've got very sympathetic press for the Brockins from a lot of different outlets. And then when it was at the Supreme Court, it was basically it was basically like Fox News, the New York Post, and the New York Times. 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 ICWA 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, I think it does. 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's 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 reach the same conclusion. 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 Indian law, Native nations, and like the concept of law that the court rejected it. Although the court did in rejecting the 10th Amendment challenge to the statute say that the law doesn't actually require states to go out and look for alternative placements that would be higher up on ICWA's placement preferences. So that was, you know was notable in that part of the opinion. 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? 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 a termination era in the 50s and 60s. And it came from Congress. And I think what we have today is that that is no longer popular. Like we 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 interest 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 that, you know, like all of these principles are like really freaking well established you know like literally like I mean that was like another part of oral arguments where you know it was Gorsuch or Sotomayor of 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. 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 plaintiffs. They're already working. They already have other cases that they're working on. 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 equal protection challenge, which alleged 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, but the plaintiffs were inviting the court to make it so. The court said that the plaintiffs did not have standing to raise these challenges. Texas, because it didn't have equal 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 who enforce ICWA. So the court sort of focuses on standing as law students and lawyers will know really has these three components, injury, causation, and redressability. 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. It 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 was 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. I don't know if others had thoughts about the correctness or sort of fuzziness of the Barrett logic. I think that there are a million ways you can say that these

plaintiffs don't have standing. Like our report showed that the Bratkeens found out that they were 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. Why let mootness get in the way of a good time at the Supreme Court? Yeah, yeah, yeah. We just spent a lot of people's time and money. But so I was actually kind of hoping that the equal 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 Brackings through I don't need to get into all the details, but through like extremely aggressive measures, get custody of a

second native child out from under that child's aunt when they actually hadn't been like fostering the kid and she hadn't been living in their home um 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 um and i think redressability is probably the easiest way to get a seven people to agree to that um 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. 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 um uh wrote it but the guy who's like okay after reading these like 400 pages you might be shocked to find out that like none of this is relevant because none of it applies in state court because we don't have jurisdiction over state courts yeah that was the dissenter um 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. This law doesn't harm them in this particular case and creates like no risk of future injury. And I just worry about the redressability 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 SB8 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 redressability 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. Well, 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 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 to what they are entitled to. I don't know, it's hard to say. You might want to say, okay, because they didn't rule on equal protection. It invites these special interests to just bring another case with a different named defendant, you know? Well, speaking of our boy, Brett Kavanaugh is like, I'm open for business for that. He really he went out of his way to say that. But which we knew, we knew, we knew. But he's a father of daughters, Rebecca, and he is the orchestrator of the most diverse chambers in the history of the Supreme Court. How could he suggest ominously in his concurrence that he's open to an equal protection challenge if it's brought by the right plaintiffs who have been injured and whose injury is actually redressable?

You know, what I would say to that, to, you know, the special interests who are trying to attack ICWA, 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 in 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 lot of ways, and it almost seems as though Coach Kavanaugh is entreating folks to keep hope alive. So he writes, in my view, the equal 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 equal protection principles and this court's precedents. See Palmore versus Sadati, 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 Mankari, where the court

makes very clear that tribal status is a political category and not a racial category and therefore falls outside of traditional equal protection analysis. But why let other precedents get in the way of a good time? 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, just as he's rejecting challenges to ICWA here. He basically says, but I'm leaving room 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 parting like it's the dark ages and the majority. In this case, like noted in a footnote that individual petitioners could challenge like

ICWA in the state court proceedings in particular. Once Justice Thomas starts flying commercial, we'll do it. Yeah, 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. 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 ICWA 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 fantastico 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 guests Matthew Fletcher and Greg Oblosky quite liberally. So good boy. 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. 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 with bowed heads and empty hands. But that is not because this court has no justice to offer them. Our Constitution reserves for the tribes a place, an enduring place in the structure of American life. Neil! Neil! 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, you know, like wreaked on Native tribes and Native families. 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 his closing says, this closing had 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. 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 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. Just adding some context. I'm the Neil Gorsuch here.

Yeah, I mean, I think that, again, it's just this this lie about equa i mean the truth is is that if you count yrj 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 in two of those cases the blood relative had already raised them for a significant portion of their life raise them. In 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 pushback,

whether that was from a social worker, a family court judge, the foster parents themselves. So in some situations, the foster parents called family members and tried 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, 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 a kid, you get to adopt them. Like, that's not how that works. It's not what was explained. One of the, you know, speaking of standing, one of one of the families signed a paper that they understood that they wouldn't be able to adopt a 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. Even these cases do not tell that story. 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 Nagel 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? Yes, absolutely. So we're in the middle of working on an update episode about the opinion that will be out Friday. 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. Thank you so much for joining us, Rebecca. Thank you so much for having me. 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 DC last week forced the Supreme Court to behave itself, at least for a temporary period. What do you think? This is the press intimidating the justices. This is what Alito has been complaining about. This is why they have security. That's why they have security.

This is why he's being driven around in a tank. He needs to be insulated from the critiques. That's what the tank is for, yep. 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 balm his struggles in Smith v. 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 a court said that was the wrong venue 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. All right. We also got an opinion in Loc de Flambeau, Band of Chippewa Indians versus Coughlin. I love saying French names. It's like my favorite thing to do on this podcast. This is an eight to one opinion.

Fantastique, Melissa. Fantastique. Fantastique. It had a certain je ne sais quoi. This was an eight to one 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 LengGreen, 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. The bank was offering loans with several hundred, if not thousand percent interest rates, 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. 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 descent in the union case, Glacier Northwest, which we've talked about, or her fantastic opinion in the spending clause case, Tulevsky. 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. It engages closely enough with text that it is acceptable to many of the court's self-proclaimed textualists. 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. She reads these provisions, including the stay provisions at issue here, in light of the overall purposes. And it is just so refreshing. 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. It's also noteworthy that Justice Gorsuch cited Leah's colleague and former strict scrutiny guest Matthew Fletcher. That would be two Matthew Fletcher sites and 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 Strix scrutiny guest, Greg Oblowski, as well as UC Hastings' Zach 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. We also got the opinion in Laura versus 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 Armed Career Criminal Act or ACCA, and specifically ACCA'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. It's like when you stack in Peloton, like you have to do them back to back.

You can't do this. You can't stack classes and take them concurrently. So it's the Peloton theory of ACCA, right? Yes. Although, is there even a hypothetical way of taking classes concurrently on Peloton? In my mind, right? Like just how you can declassify things with your mind.

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

imprisonment. 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 ACCA 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. 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 10 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. 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, end quote.

And it declined to address the government's kind of bogeyman 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. Textualism and constitutionalism. Amazing. Love to see it. The other decision we got was U.S. X. R. L. Polanski versus executive health resources. And this was an eight to one decision written by Justice Kagan about the False Claims Act. 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 a relator files these cases in what are known as key Tom suits. These are suits where the private party

is basically suing on behalf of the United States to protect the government's interest. 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. 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. 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 sitting, the December sitting, there are nine cases, which means that each justice should get one opinion. In this particular sitting, the December sitting, there are nine cases, which means that each justice should get one opinion. And here are the opinions for which we are still awaiting decisions. 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 Holland versus Rakeen. There's also 303 Creative versus Alanis.

That is the manufactured 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, you know, this is all very hypothetical, but why let that get in the way of a good time? There's also Moore 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. So those are the three cases that are outstanding from the December 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 Moore 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 the majorities in those cases. One, Chief Justice Roberts. Two, Brett Kavanaugh. Well, I wonder about Brett Kavanaugh and what

he might do were he assigned 303 Creative versus Alanis. 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. I'm not optimistic about that. I'll just put that out there. Fair enough. And then the other option is Neil Gorsuch. Yikes. Definitely no Indian law cases in this bunch. No, no Indian law cases. Good Neil is in the box. Good Neil is in the box for now. Yeah. And I also have to say, these cases would be kind of big assignments for the junior varsity bros. 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? What if the chief is in the majority in all of these and assigned some of them to the JV 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. Melissa, no one assigns opinions to Neil Gorsuch hoping that they will be less strident and more moderate. Sorry. You're right. No one assigns an opinion to Neil Gorsuch hoping it will not be pedantic. But it could be like, just like, let him have

his little history frolic. And like, but it'll be less crazy than the history that either Thomas or Leo could write. Sure. Perhaps. 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 will chime in from tropical locales to let you all know what I'm thinking. Yes. And you will be back the following week and also for term recaps. For sure. I'm not going to let Justice Thomas dismantle affirmative action and have nothing to say about it. No, that does not sound like you. Nope. And confirmed.

So one 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, Shin v. Ramirez. That's a case from last summer where the court held that it is illegal for a federal court to consider evidence that you're innocent, even though that evidence 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 released 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 GoFundMe, which we'll link to in the show notes. 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 Shin versus Ramirez. Liliana is the reporter at The Intercept who did incredible investigative work into his conviction and innocence. And I'll just save the page for the GoFundMe in case you happen to be at a computer and want to type it out. It's GoFundMe.com slash F slash Barry hyphen Jones hyphen release hyphen fun.

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- Insert music here. Insert music here, Melody.

It's been a long time coming but we finally have big reveal from under the unbox it 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 ever be. But not the last. But not the last. Fingers crossed to be confirmed to the Article 3 federal courts. Listeners may recall we did an episode with Dale about the documentary, The Fight, that covered, among other things, Dale's involvement in the successful challenge to the Trump administration's efforts to add a citizenship question to the census, spawning the meme that I will go down with my dying breath.

This is actually necessary to enforce the Voting Rights Act. Our OG listeners will recall that. Again, it's a reference to the census case where the Trump administration pretended to give two shits about enforcing the Voting Rights Act and claimed that the census adding a citizenship question would somehow allow them to do so. 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. I think it was LDF, actually. Probably, yes. Yes, correct, correct. Democracy now. Democracy now forever.

It also gives us the opportunity to say that finally on this podcast, there is a Judge Ho that we can actually recognize. Nothing but respect for my Judge Ho. Love this. love this 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 yeah um also this week judge nusrat chowdhury 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 III federal judge. So lots of good news. It's almost like the Constitution includes civil liberties. It's amazing. This is so cool. Almost. Almost. Almost like. 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 3. I wasn't even 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 – Ellie Mistal.. I was just thinking like of all the people who've come on, like someone else is going to be a judge. I totally-

Ellie Mistal. We already have one. My position is Ellie Mistal to the Fifth Circuit. To the Fifth Circuit yesterday and then the Supreme Court together with Dale Ho, Julie Rickleman,

and a few others. Sam Shankar. Okay, the news is good, but it's not quite that good. I'm sorry for the word. Manifest. Manifest it, Kate. Think about it, Kate.

Shit my friends say to get me by. I thought you were the optimist. You were the optimist here. Like, come on. 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 we'll 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. Kloetjer 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. Imagine. A girl can dream. It's different. 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 4 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 parents' 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 on 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. Or who thinks she's maybe auditioning for a place on the like Trump Supreme Court shortlist if there were to be a second. I mean, I don't think she's

really in the right age demographic. No, she's older than 20. She's not a fetus, therefore. 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 says the dissenting justices would have thrown out votes, Justice Bradley says he is, quote, repeating a farcical talking point of liberal partisans in the media and beyond. End quote. Just another amazing illustration of how the worst and meanest and most unfair thing you can say about Republican jurists 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 a 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 order's release and is maybe a bit much.

And she just went insane-o. 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 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 spent a lot of time on 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. She has some Sam Alito level feelings. And speaking of Sam Alito, so we also learned 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 to defend it, the other could not subsequently try them. So here's one of the things that these legal scholars lodged at Justice Alito's approach to history. Quote, there's 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, right? 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, oh, contraire, Sam. Through their research, they uncovered Northeast contemporaneous reports summarizing the Hutchinson rule. And it says, quote, the judges certified 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, Nisi, etc. The information added by this article resolves the matter. Northey's report of the decision of the judges and Hutchinson is completely conclusive. This is what Aldridge and the other author Ann Mumford, a professor at King's College in London, says. If the U.S 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 PhD. This is terrible history. And we didn't even do that much work. We just 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. 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 refutation. 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 show in as successful

a 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. 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 I think it sounds better with an English accent. Like basically, you're an idiot, an absolute idiot. 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 Skandava when you think about it. But this piece is just part of the larger Sam Alito read a book, try some archives challenge. Read a book, do some history. Yeah. 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.C. after our live show in D.C. and apparently listens to the pod. We are not going to shout out the United Gate agents who did not let me board the flight after Leah and I went and had Moscow Mules. So you told Kate? Okay. Tell our listeners they need to hear this. I literally missed a flight because Leah decided to ply ply me with moscow okay 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 some Moscow mules, start chatting, turn our phones over. And then all of a sudden Melissa's like,

wait, my flight takes off in six minutes and practically 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 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 a – Sometimes you miss a flight. When you're like 10 feet away from the gate is what I love the most about this story. I will say a lot of flights were boarding.

It wasn't clear. It was not clear. Exactly. A lot of flights were boarding. They definitely never called her flight or called her. And they did not say, Melissa Murray, get your ass over here. This plane is leaving. A lot of flights were boarding. They definitely never called her flight or called her. And they did not say, Melissa Murray, get your ass over here. This plane is leaving.

They never said that. 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 Scandaval. And then we were good. That's all good. This is a great ending to the DC saga. We got to get back there. That were good. That's all good. This is a great ending to the DC saga. We got to get back there. That's good.

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? I think we actually were involved with some kind of traffic pattern disruption because you guys wanted 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 Geduldig, 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. You really know what you're talking about. And we are glad for all of the work you do in immigration law. 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 strictscrutiny at crooked.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. 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 loved this episode, because of course you did, make sure to rate us and review us on Apple Podcasts and subscribe wherever you listen so you never miss an episode. and Ari Schwartz, and digital support from Amelia Montooth.