Strict Scrutiny - Smashing Precedents and Making Up Facts

Episode Date: July 4, 2022

The Supreme Court finally finished the OT2021 term-- and it was a doozy. Kate and Leah recap the last few opinions, including Oklahoma v. Castro Huerta, with special guest Greg Ablavsky of Stanford Law [3:55], and the "praying coach" case, Kennedy v. Bremerton School District [34:22]. Then, a lighting round of four more opinions and other Court-related news [53:06]. You’re angry. We’re angry. Let’s do something about it. From directly supporting patients who need abortions right now, to electing pro-choice candidates in 2022 and building a progressive majority over the long term, you can find everything you need to fight back in our Fuck Bans Action Plan hub at votesaveamerica.com/roe.  Follow us on Instagram, Twitter, Threads, and Bluesky

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. Welcome back to Strict Scrutiny, your podcast about the Supreme Court that is celebrating Independence Day by making itself independent from law. Happy July 4th. Happy July 4th.

It is also Steve Breyer Independence Day weekend. That's right. We were recording on Thursday. It is the last day of the term, and it is the day that Justice Stephen Breyer's retirement took effect. That was at noon today. And I just have a feeling that Sonia Sotomayor and Elena Kagan will be gazing longingly at him as he waltzes out of that building for the last time as an active justice. I just have this feeling they're tempted to join him, but they are needed, and so they can't. On a happier note, Justice Katonji Brown-Jackson was sworn in earlier today. The chief justice administered the constitutional oath.

Justice Breyer, her former boss, administered the statutory judicial oath. So as much of a bloodbath as this last week was, it actually was lovely to see her step formally into the role and kind of get started there. Although, oh, my God, what a dumpster fire to walk into. Can you imagine? Literally on Thursday as the term was ending, there were pictures of an actual fire emanating in DC from the Fort Tottenstop. I don't know if you saw these.

It was just, it was very real, very real. Okay, so we are your hosts. I'm Leah Lippman. Sorry, we shouldn't have said that. We dove your hosts. I'm Leah Lippman. Sorry, we should have said that. We dove right in. I'm Kate Shaw. And I want to be added to the Elena Kagan, Sonia Sotomayor, Ketanji Brown-Jackson signal channel, because I'm sure they have things to say right now. Don't worry, Melissa Murray has not ridden Briar Style into the sunset, though she is traveling, but she will be back for the term recap next week. So as we just made clear, last week, the court finished releasing opinions in argued cases. We're going to recap the cases we got last week. And then next week, we will have

a more complete term recap. And on that episode, we will also discuss our plan for the summer and the episodes that we'll do over the summer. But for now, we've got some opinions to tell you about. First, the breaking news is that SCOTUS is breaking things. So we're going to try to cover basically all the opinions we got this week, which means we're not going to be able to do so in the depth that we would like because they got a lot of opinions out. But our summer episodes and some others that we are planning are going to go in more depth on some of these cases. So pretty surface today. Stay tuned for more depth to come. Okay, so we are going to start with the court's

major opinion in Oklahoma versus Castro Huerta. This is the important federal Indian law and tribal authority case we were watching. We did a preview of the case and a recap of the argument. And the case here arises as a result of the Supreme Court's major federal Indian law ruling from just two terms ago in McGirt versus Oklahoma. But its implications go way beyond McGirt. So to help us discuss this case, we are delighted to be joined by Professor Greg Oblowski. Greg is a professor of law and the Helen L. Crocker Faculty Scholar at Stanford Law School, as well as a professor of history at Stanford. And Melissa would want us to note he was a visiting professor at NYU Law this past semester.

Gregg was also one of the contributors to the amicus brief that we highlighted in this case that was filed by the NYU Yale Sovereignty Project. And his scholarship on federal Indian law was cited by the only justices who we trust on federal Indian law, Justice Gorsuch, who wrote a dissent for himself, along with Justices Breyer, Sotomayor, and Kagan. But we are getting ahead of ourselves. So first, welcome to the show, Greg. We're so excited to have you here. Yeah, thanks for the invitation. Happy to talk about this, even if I'm a little less thrilled about the actual opinion. As are we. This case is about much more than McGirt, but it is helpful to understand the precise issue in the case against the backdrop of McGirt. So maybe we should start there. Leah, do you want to maybe

talk about McGirt to get us started? Yeah. So McGirt, as many of you probably recall, was a 5-4 opinion written by Justice Gorsuch that concluded that the boundaries of a long established Creek Reservation were still intact and encompassed sections of Oklahoma. That decision was 5-4, written by Justice Gorsuch and joined by the then four Democratic appointees on the court, including Justice Ginsburg. The decision was a big win for tribal authority. Greg, I don't want to mess up federal Indian law. So why was it significant that the court reaffirmed the existence and boundaries of the Creek Reservation in McGirt? I will say my longstanding view on McGirt is that the court simply applied pretty well

established precedent and law. It had basically said this in Nebraska v. Parker only a few years earlier. But that is a big deal in federal law. And in this court right now in every area of law. Yeah, I think it's worth stating, right? The stakes were very high. We were dealing with a huge chunk of law. Yeah, I think it's worth stating, right, the stakes were very high. We were dealing with a huge chunk of territory. There was some suggestion, as has subsequently been held by

the Oklahoma courts, that other parts of Oklahoma would also be considered to be Indian country. So the stakes were very high. And the other thing worth noting is also Justice Gorsuch's opinion had a lot of very strong writing, right? So it was not just a very pro forma opinion. It was opinion that spoke very robustly and very eloquently about the meaning and the history of the relations between the United States and Native nations. And part of the significance of, you know, if it is Indian country or like the reservation remains intact is that changes who might have authority over some of the lands. So if it is Indian country reservation, that means tribes as

sovereigns have greater authority to regulate tribal lands. And if it's not Indian country and not a reservation, then it might mean states as sovereigns have greater authority to regulate the land. So whether something is Indian country and a reservation matters as to which sovereign is supposed to have like what kinds of authority and over who. Yeah, there's a whole complicated jurisdictional chart that I am now going to have to go change for the next time I teach this, that addresses precisely this question. And it is a complicated patchwork of tribal, federal, and now increasingly state authority. So as Greg was just saying, the decision in McGirt was consequential in part because the reservation there encompassed large swaths of Oklahoma. And it turns out the state of Oklahoma

did not like the decision in McGirt, like really did not like it. You had the governor of Oklahoma, as well as other state Republicans and conservative commentators going on Fox News claiming that the decision was creating all of these problems for them. Now, some of these assertions have been, let's say, called into question at a minimum by Rebecca Nagel, among other people. But you know, that is, I think, an important backdrop to this case. So the state of Oklahoma, very, very unhappy with McGirt, basically launched a series of challenges to it, including this one that, as filed, asked the court to address two

questions. One, whether to overrule McGirt. Oklahoma can count, sees that the court looks different from the court that decided McGirt just two years ago and thought, maybe we have a shot, right? Let's go for it. But secondarily asked the court whether, assuming McGirt is correct and will not be overruled, states nonetheless have criminal jurisdiction over cases on tribal lands and reservations that involve non-Indian defendants and Indian victims. So as we discussed when we previewed the case, it seemed, at least to me, like there were a fair number of Supreme Court decisions, as well as some statements in McGirt itself, that represented states did not have criminal jurisdiction over those kinds of cases. But Greg, you're the legal historian, you know, for listeners who might not be familiar with federal Indian law, can you give us an assessment of kind of the state of the law or the backdrop to this issue before, let's say, Justice Kavanaugh stepped in? Yeah, how much time do we have? Now,

the short version of this is, I think there was just a widespread assumption that states lacked this jurisdiction over non-Indian offenders against Indian victims. The Supreme Court had basically said as much a half dozen times over the 19th and 20th centuries. That's how I'd been teaching it for years. And then one time when I was teaching it, one of my students asked me, as students are wont to do, why is that the principle? And, you know, it's always tricky when students ask you the question. They're like, hmm, this is a tricky question to answer. And the answer is, in part, it's always been that way.

And in part because of the very complicated history of Indian country as a distinct jurisdictional space. And so the challenge is it's very hard to point to a single piece of federal text, which is, of course, what the majority here demanded. But if you were to ask why isn't there a single piece of text, you know, you might ask the same question, like, why, for instance, can't the state of New York exercise jurisdiction over parts of New Jersey? Like, okay, you could gesture maybe to

some constitutional principles, but there are deep-seated structural questions about sort of territory and jurisdiction that are lurking in the background here that are very difficult to answer with reference to specific bits of legislation in the same way. Yeah, I mean, sometimes people call these constitutional backdrops, you know, sometimes people call it constitutional common law, but there are these principles that are inferred from practice, structure, history, you know, the political theory underlying the relationship between different sovereigns that limit the extent of states, the federal government, tribes, authority, you know, over certain areas and over certain persons. And now we get to the opinion, which is basically like, too bad, so sad, says the Supreme Court. That's the TLDR. But Kate, maybe you can add some flavor to that. And we've mentioned Kavanaugh and Gorsuch, but we should maybe just say explicitly, this was a 5-4 opinion by Justice Kavanaugh, who had been in dissent in McGirt, but of course, the math has since changed. So the court in that Kavanaugh, who had been in dissent in McGirt, but of course the math has since changed.

So the court in that Kavanaugh opinion rules that states have jurisdiction over cases involving crimes by non-Indians against Indians. There is an extremely forceful dissent, which we will talk about, by Justice Gorsuch together with the three Democratic appointees. So while this decision affects the consequences of the McGirt ruling, it seems to apply more broadly than that, right, by giving states concurrent jurisdiction over crimes, again, by non-Indians against Indians on any tribal or reservation lands. So this case, to me, kind of pointedly involves questions about how to read history. So here's kind of what I mean by that. There's no question that there are historical moments where states, sometimes with the blessing of the federal courts, tried to and sometimes were allowed to seize power from tribes. You have these cases in which the court said, sure, these are tribal lands, but states can prosecute crimes where the defendant and the victim is non-native. How do we think, Greg, about how to

read history when some of these cases or some of this historical practice, we might have reasons to be a little bit skeptical of or a reason not to give a ton of force to? The cases you were referring to, McBratney and Draper, they're from the late 19th century, which of course is a pretty fraught moment to look to in the history of federal Indian policy more generally. But actually, I think there's a particular reason that the court doesn't discuss as to why these cases probably don't bear as much weight as the court gives them, which is both of them largely rest on the equal footing doctrine, which in the context of federal Indian law, the Supreme Court said in 1999 rested on a false premise and rejected that argument.

And just in Herrera versus Wyoming, they reiterated the same principle just a couple terms ago saying, look, they explicitly overruled this case from the late 19th century resting on the equal footing doctrine. Greg, could you explain the equal footing doctrine? Yeah. So the equal footing doctrine is based on the principle that when a state joins the union, it has equal rights of sovereignty as existing states. And so the argument was when, you know, Wyoming or Colorado joined the union, they had the same rights as, let's say, Georgia. And of course, I picked that example deliberately because as Worcester versus Georgia demonstrates, and I'm sure we'll get into that, the Supreme Court has already articulated that Georgia lacked jurisdiction over native

lands. To be fair, though, Greg, Justice Kavanaugh is not really so sure that Chief Justice Marshall meant that in Worcester versus Georgia. You know, he has a better read on history at that time than Chief Justice Marshall does. Yeah, I mean, it is a remarkable opinion where they say, you know, yeah, OK, we only look to the past sometimes, but all this Chief Justice Marshall stuff, we're just we're going to throw that out the door. He didn't know what he was talking about. That is a pretty remarkable statement from this court. Yeah. I will say also, this is a case that the pronunciation of which causes perennial confusion. And I, as a New Englander, stubbornly insist on saying Worcester. But I will say that once I visited the New Echota historic site and the people told me that it is in fact pronounced Wooster.

I'm going to continue to pronounce it Wooster until the day I die, I suspect. Okay. Well, so Justice Gorsuch's dissent, you know, as Kate said, is quite powerful. And he kind of draws an analogy between what the court is doing here to what it did in other cases where the court sanctioned, again, like states' lawless assertions of authority over tribes. So Justice Gorsuch writes, where this court once stood firm, today it wilts. After the Cherokees' exile to what became Oklahoma, the federal government promised the tribe that it would remain forever free from interference by state authorities.

At various points in its history, Oklahoma has chafed under this limitation, where our predecessors refused to participate in one state's unlawful power grab. At the expense of the Cherokee, today's court accedes to another's. As the Gorsuch dissent suggests, to get where the court goes, it has to cut back on other cases as well as statutes. And it's not just judicial precedent from the 1800s, but it's also congressional enactments decided against the backdrop of those cases. So could you tell us a little bit about those, Greg? Like you said, this has kind of been an assumption, you know, how people have operated under this understanding, you know, what were those congressional enactments and how did they work? Yeah. So as with so much in federal Indian law, I can say this goes all the way back. In fact, all the way back to 1790 was the first time that Congress established this federal jurisdiction over crimes by non-Indians against Indians.

But it was reenacted in 1817, in 1834. Now it is part of this statute called the General Crimes Act. But it doesn't explicitly say that the federal government has exclusive jurisdiction, which is what the majority demanded. But there is a lot of evidence that that was the understanding at the time. And more than that, there are subsequent statutes that reinforce that view. For instance, Public Law 280. So Public Law 280 is the statute that basically gives states jurisdiction within Indian country that they can opt into. Importantly, as amended in 1968,

only with tribal consent. And if the states already had jurisdiction over Indian country, as this ruling suggests, the argument is, well, why then would you need public law to aid it, right? Why would you need this statute that expands the scope of state jurisdiction? I mean, Justice Gorsuch points out, and I think correctly, that the longstanding view was that in order to have jurisdiction within Indian country, there had to be some authorization by the federal government for states to exercise that control. Not just kind of cutting back on the statutes, but also, as we were saying, you know, some of the earlier precedents. And as I, you know, rudely interjected, you know, one of the precedents that the court has to kind of cut back on is Kavanaugh says is, the general notion drawn from Chief Justice Marshall's opinion in Worcester has yielded to closer analysis. By 1880,

the court no longer viewed reservations as distinct nations. And I just think like, this is quite a flex by an originalist, you know, to look back at John Marshall's assessment of the world around him and be like, no, actually, I understand it better than you did. It's really quite something. Like, are there other examples of this, Greg? Or like, do other things come to mind? Or is this just kind of how originalism in federal Indian law has come to work? I think the great problem that originalists in federal Indian law face is that if you were truly originalist in federal Indian law, you support a robust vision of tribal sovereignty and you support a very limited scope for state authority, right?

And even the majority opinion acknowledges that there was this widespread principle of territorial separation in the founding era. But then what's remarkable is that they say that it was abandoned over the course of the 19th century. And I think that is a fascinating move. First of all, the passive voice. But second of all, yeah, I know,

it's a little bit of, uh, writing teaching that, uh, that I remind my students is you can hide a lot with the, with the passive voice, therefore you should avoid it. Um, but the, the notion, I think what's fascinating about it is they don't talk about it all where this principle of territorial separation comes from, right? They don't talk about it as a constitutional principle. They don't even talk about it at all where this principle of territorial separation comes from, right? They don't talk about it as a constitutional principle. They don't even talk about it as sort of a common law constitutional principle. They just say, well, you know, we moved away from that. You know, Marshall misunderstood it.

I think the much more accurate account is that the principle of Worcester versus Georgia rested on an idea that, you know, this was absolutely separate and completely demarcated. And that became a very difficult principle to sustain, especially if you were in the business of trying to conquer and subdue Native peoples. And so there were these tweaks over the course of the 19th century, but the idea that it was wholesale repudiated is absurd. And I think what's particularly remarkable is that even the Supreme Court in the early 20th century, which is hardly a particularly pro-tribal Supreme Court, is not willing to go as far as this court in extending the principles of McBratney and Draper. In fact, in the Donnelly case in the early 20th century, they say, no, we're not extending this to precisely

the category of crimes that the Supreme Court now extends it to. So it's certainly the case that the history after Worcester is, of course, like so much of the history, really complicated and often tortured. But the idea that, oh, we just are done with Worcester and are never going to invoke it again is laughable. And in fact, in 1959, in Williams versus Lee, the Supreme Court basically says the opposite. They say like, yes, we realize that Worcester has faced a lot of challenges, but it is still good law, and we still hold to those principles. Barely features in the majority's decision. In fact, that was a Warren Court decision, though, so it's necessarily anti-canon.

A question, Greg, that's sort of a broader question about this particular court and its methods. I mean, obviously, this is a self-consciously originalist court, and we have seen this really selective deployment of history in the Bruin, the gun case, obviously Dobbs, the abortion case. This kind of maximalist court is asserting incredibly broad authority across a range of areas. And in a lot of these cases in which, obviously, history is front and center, it does feel like, I'm going to quote Ezra Klein in a podcast that I did with him this week, but he basically says, what's crazy about these cases, it feels like the court is not only asserting the authority to say what the law is, but asserting

the authority to say what history means. It says that it decides the meaning of even deeply contested history. And there is something incredibly troubling about that. But I guess I have a question, which is that maybe this deep engagement with history is kind of unavoidable in some of these federal Indian law cases. And so it's just a question of not whether, but how you do history. So I guess I'd be curious as a legal historian, Greg, is history just kind of inextricably intertwined with a case like this one? And so it's a question of who gets the history right?

Or is the court a little bit exceeding the scope of its ability when it seeks to distill and discern the kind of true meaning of these complex historical narratives? This is obviously a question that I think a lot about in this particular area. I think this is where the background principles do a lot of work. Because one of the things that I reiterate to my students is that this history is incredibly complicated and vacillating, right? The federal government's views of Native peoples have varied wildly over the course of U.S. history. And so as I tell my students, if you wanted to come up with a narrative in which the federal government, you know, constantly denigrated and subordinated peoples, you can construct that

from the historical materials. If, by contrast, you want to construct a narrative in which the federal government has upheld and defended Native sovereignty, you can find the evidence for that narrative as well. And so the question then becomes, what do you do with conflicting evidence, conflicting narratives? And I think this is where the background presumptions come into play. And going back to McGirt, I think what McGirt is particularly helpful for is saying, well, look, here we have a very messy history. The history of how Oklahoma became a state from Indian territory is really complicated. But what Justice Gorsuch does helpfully is remind us that we have a clear statement rule precisely for this problem, right? In other words, Congress needs to speak very clearly if it is going to take away

that authority. And you can throw all this evidence at the wall, but you cannot point me to one moment where Congress has actually taken away that authority. And so that is why I think the key dispute in this case in Casa Huerta is what the background presumption should be. The background presumption for the majority is that tribal territory is going to be considered part of a state unless you can show us otherwise. And Justice Gorsuch revers principle finds much stronger foundation in the longstanding traditions in the way that these questions have been approached historically. But again, you know, if you want to construct the alternative narrative, the tools and material are there to do so. And this is one of the great challenges in this area of law is just there is so much confusion and uncertainty. And so the background principles do a lot of work.

So I wanted to pick up on something you said, which is here the court appears to go further than they did in prior cases, even when they were blessing aggressive assertions of state authority, but also on this idea of picking your background principle and what that background principle might reflect. Because, you know, to my mind, there were some passages in this opinion that sounded, you know, maybe just to my eyes or my ears, another instance of the court just signing off on aggressive power grabs by the state and on the basis of minimizing tribal authority and the significance of tribal authority. So, you know, there's a passage in the opinion that says the question in this case was relatively insignificant in the real world, or, you know,

a passage where Justice Kavanaugh writes, Indian country is part of the state, not separate from the state, which, you know, again, to my mind, kind of like minimizes the idea of tribes as separate sovereigns and authorities. Like, what did you make of this language? I mean, Justice Gorsuch calls this case, you know, the latest entry in the anti-canon of federal Indian law. Is this part of what he's referring to or what? Yeah, I mean, I think there's a lot going on. Again, the idea that tribes are ordinarily part of state territory, absent some clear

instance of federal preemption, is a principle that could do a lot of damage, not just in this specific instance of the exercise of criminal jurisdiction, but more broadly. I mean, the court alludes to these Bracker balancing cases, which are quite frequent, in which states and tribes have fights over civil jurisdiction. Those could potentially be widely impacted by this decision. I think the majority views, concludes that tribal sovereignty is not at issue because they say, look, we're not taking authority away from the tribe, right? All we're doing is we're giving authority to another sovereign in this instance. And so that doesn't impact or minimize tribal sovereignty. I think Justice Gorsuch is right to say that that is an extremely crabbed vision of what it means to protect tribal sovereignty. And I think it's pretty

willfully blind to what the practical consequences of this sort of decision will be. I was going to ask, actually, if you could just elaborate a little bit on the consequences on the ground beyond just criminal prosecutions of the sort the court was facing in this case. Yeah. Well, the shortest way to answer this is to say that this is not hypothetical, right? Because we know what happened when Public Law 280 was extended over tribes. That is when state jurisdiction infiltrated Indian country with congressional blessing. A number of very important things happened. First, Congress substantially diminished the amount of resources

that were available for tribal courts, tribal policing, the infrastructure of tribal criminal justice. That is pretty clearly the most important work in preserving law and order in Indian country. The other thing is that the decision not to criminalize something is a really important decision too, right? They seem to say, well, you know, what does it matter if you have more and more criminal jurisdiction overlaid? Just in light of recent decisions, like why does it matter whether a state might criminalize abortion if a tribe does not, right? Hypothetically. Yeah. I mean, although I want to take it a little bit out of the abortion context, because I think it has been unfortunate the way that those two have collided and that so much of the paradigm has been about abortion.

You can imagine lots of other instances in which tribes might not want states coming in and enforcing laws. You know, the entire scheme of tribal gaming rests on the principle that state laws might not necessarily be able to apply to Indian country in many instances. Or, you know, let's say a tribe wants to experiment with cannabis or engage in other forms of economic development that, you know, states don't like, that they disapprove of, that they try to stop. I mean, it's interesting, right? We just saw Isleta, where Texas was trying to step in and prevent the Isleta del Sur from creating bingo operation. You could imagine lots of instances in which states have very different priorities from tribes. And so this idea that somehow state involvement won't impact the scope and meaning of tribal sovereignty, that to my mind is incredibly short-sighted.

So what are we to make of Justice Barrett's vote in this case? You know, she voted with the majority. She was not on the court when the court heard McGirt. What does it say about where she might be on tribal sovereignty and authority, maybe with an eye toward next term's monumental case about the Indian Child Welfare Act in Burkina Faso. I think a lot of people in the Indian law community were disappointed. I think we were hopeful after Isleta and Dineshpi that she might be willing to side with tribes and endorse tribal sovereignty. Obviously, it's disappointing. We'll see what the next case brings. I mean, the difference between this case in Burkina Faso, of course, there are a lot of differences, but I think the key difference is that this case, basically the majority said, well, there's no congressional enactment on point.

And so it sort of fell back on common law principles on how to adjudicate disputes between tribal and state authority. Burkine actually presents, I think, another fight over the balance of tribal and state authority, but one where Congress has explicitly spoken. And that is a challenge to federal authority at its core, right? Can Congress actually step in and arbitrate those disputes? So there is clear text. There is a mountain, in my view, of history and precedent that supports that. But we'll see. I mean, the question is, are they not only going to say in my view of history and precedent that supports that, but we'll see. I mean,

the question is, are they not only going to say in the absence of federal support, the purported absence, I should stress, right, in the purported absence of federal support, that they're going to come in and side with the states, but whether they will do that when the federal government has explicitly and clearly spoken. So, you know, this doesn't necessarily resolve Burkine for sure, but it's certainly not an encouraging sign. All right. Well, we will obviously be covering that case in much more depth next term when the court hears and then decides it.

Greg Oblovsky, thank you so much for joining us to break down this case. Greg is a professor of law at Stanford and a real expert on all matters of federal Indian law. Thanks again for helping us understand what the court's just done here and what is at stake. Thanks for taking the time. So the next stop, I guess it was a previous stop on this court's path to refashioning the law as it pleases, was the opinion in Kennedy versus Bremerton School District. This is a case about Coach Kennedy and whether at the close of a public high school football game, he could engage in public prayer if you live in reality or private prayer if your brain has been consumed by Fox News. Surprising exactly no one, the court said he could do that, whatever that is, and the school couldn't discipline him.

I'll explain in a second why I am trying to give two alternative versions of the facts. The opinion is 6-3. Justice Gorsuch wrote the majority rather than Coach Kavanaugh. Interesting. Justice Sotomayor wrote the majority rather than Coach Kavanaugh. Interesting. Justice Sotomayor wrote the dissent. Okay, so we should explain a little bit what Leah meant by reference to these dueling accounts, because the majority and dissenting opinions are seeming to describe entirely different factual universes, right? So here is how the majority that Justice Gorsuch, again,

authored, described things. Quote, Mr. Kennedy prayed during a period when school employees were free to speak with a friend, call for a reservation at a restaurant, check email or attend to other personal matters. And yet the dissent not only tells a very different tale, but also includes pictures of the kind that are worth, you know, about a thousand words of the coach kneeling, surrounded by other kneeling, obviously praying students in uniform, not at all quietly praying on the sidelines while students are otherwise occupied. And I think it is helpful to note that we have other takes on the facts at issue here beyond just the competing ones in the majority and the dissenting opinion. So maybe let's revisit for a moment the way a Republican appointee on the Ninth Circuit described the coaches and now Justice Gorsuch's characterization of the facts.

He describes his colleagues on the Ninth Circuit as having basically swallowed, quote, a deceitful narrative of this case spun by counsel for appellant to the effect that Joseph Kennedy, a Brampton High School football coach, was disciplined for holding silent private prayers. That narrative is false. I mean, that's pretty strong language, and that was no liberal writing. So Judge Smith on the Ninth Circuit is a George W. Bush appointee. His brother was a Republican senator for many years. He is a quite conservative judge. And he called both Coach Kennedy and now Justice Gorsuch's version of the facts a false narrative. And I think that's really telling. Yeah. And here's how the dissent by Justice Sotomayor described the facts in addition to including the pictures. And people really should look at the pictures because I think they're quite revealing. So Justice Sotomayor writes, the record reveals that Kennedy had a longstanding practice

of conducting demonstrative prayers on the 50-yard line of the football field. Kennedy consistently invited others to join his prayers and for years led student athletes in prayer at the same time and location. In September of 2015, a coach from another school's football team informed the school's principal that Kennedy had asked him and his team to join Kennedy in prayer. Therefore, she writes, this case is about whether

a school district is required to allow one of its employees to incorporate a public communicative display of the employee's personal religious beliefs into a school event, where that display is recognizable as part of a longstanding practice of the employee ministering religion to students. And you see these pictures, you read the Ninth Circuit opinion, you read Justice Sotomayor's account, and it's like, I did not know that the Supreme Court was in the business of writing fiction. They have really expanded their genres. Part of what is so frustrating about this, in addition to just, I mean, I don't know how to characterize this, if it's sloppiness, just a desire to reach a particular outcome, a desire to spin a particular narrative, or what it is, but whatever it is, you basically have to accept their pretty specious factual misrepresentations of the case going forward in order to try and litigate in this area and distinguish the next case and say,

well, in that case, you know, the coach's prayers were very private, notwithstanding the fact that in the real world, that's not what happened. It is just like, not only are we smashing precedents left and right, we are now the next frontier as we are literally just making up facts to suit our preferred outcomes. And it actually is, I think, quite disturbing to see this kind of blatant mischaracterization that didn't even evidently bother to respond to the photographs that Justice Sotomayor includes in the dissent. It just sort of says like, you know, we not only get to say what the law is and say what history is, we get to now say what facts are. And that does feel like a pretty scary kind of next frontier

in terms of this court's increasing assertion of authority to kind of do all the things, including apparently like rewrite reality. Okay, so on to the court's reasoning. So background here, this case, like Carson versus Macon, which is the main school funding case that we previously talked about, involves the interplay between the Constitution's Free Exercise Clause, which protects individuals' rights to practice their religion, and the Establishment Clause, which actually no longer really exists, but says, if you read it, that it prohibits governments from establishing religion. In order to determine whether the Establishment Clause is violated, the court has historically applied a legal test from a case called Lemon v. Kurtzman, And it has long been clear that some current and some former justices didn't like that test. And what Justice Gorsuch does in this opinion with

the test is hard to describe. He does not explicitly overrule, at least using those words, the Lemon Test. Instead, he kind of abandons it, but sort of does so by claiming that the court has already abandoned it. And everyone should have understood that, although the court had never explicitly said it. So let me quote from the Gorsuch opinion. He basically says the lower courts here overlooked the fact that this court long ago abandoned Lemon and its endorsement test offshoot. And the court is just now noting something that everybody already should have realized, which is Lemon no longer supplies the relevant test for deciding if something violates the establishment clause. I mean, what does it mean to abandon a case or

the legal standard it announces? Is that different from overruling a case? You know, in this opinion, it seems to entirely excuse Justice Gorsuch from performing a traditional stare decisis analysis about whether to overrule a case and consider the usual factors that are supposed to constrain a court's decision about whether to overrule a case. And I have to say, this concept of the abandoned precedent that everyone should know is already abandoned is making me quite nervous about what the court in the future might say, let's say, about Chevron, you know, the case about agencies getting deference when they interpret statutes,

or other disfavored cases, because I can imagine an opinion that reads, look, some justices on the court don't like Chevron, and the court really hasn't applied it in a bunch of cases. So we make clear what our prior decisions implied. It has been abandoned. And the concept also seems like a green light to the lower federal courts to get ahead of the Supreme Court and say, oh, yeah, obviously the court has abandoned all of these other precedents because it's not applying them and some justices have criticized them. It's such a smart parallel to Chevron because that actually is exactly what the court is doing right now. It has just ignored Chevron in several administrative law cases this term. And I think you're right. Maybe they are just laying the groundwork to literally do exactly this with Chevron in a couple of terms. This decision in

Kennedy came down one day shy of the 51st anniversary of Lemon. And Justice Sotomayor, in her dissent, said the court is overruling Lemon. She also described this as a disservice to schools and the young citizens they serve, as well as to our nation's longstanding commitment to the separation of church and state. I think this concept of abandonment is very much in keeping with a Roberts Court, very chaotic approach to precedent and its pattern of drawing totally nonsensical distinctions with prior precedent. You know, earlier free exercise cases and establishment clause cases had framed themselves as exceptions to Lemon. And yet the court is like, no, no, no, no, they had abandoned Lemon. It's just, it's very difficult to follow. But I guess when you're just doing like chaos left and right, this is the end product of it. So what is the court's new test if it's no longer Lemon and endorsement? It's basically like do originalism instead,

you know, in place of asking whether students have been coerced or maybe not. I guess you can sometimes look at coercion. I don't know. But at least in place of asking whether the government has endorsed religion, you just do originalism. Right.

So we just ask again. And of course, like we know how selectively originalism can be practiced. So just find historical practices and understandings that support either allowing or invalidating a particular practice, and you're done, you got your opinion. So that seems to be how going forward, the court is directing courts to kind of run their establishment clause analyses. Yeah. And in keeping with this trend of fucking things up in the footnotes, you know, the court also had this to say about the free exercise clause. It said, a plaintiff may prove a free exercise violation by showing official expressions

of hostility to religion accompany laws burdening religious exercise. This is a totally different standard than the court has used in other disparate impact cases, you know, that burden some racial groups relative to others. And the court just announces this as a legal test. And it is just, again, so chaotic. Citing Masterpiece Cakeshop and just suggesting literally just shows that there's some official expression of hostility. And without any further inquiry, we're going to set those kinds of policies aside. I mean, that's a lot and a big change to just shove into a footnote. And yet, here we are. In terms of what the court does with Coach Kennedy, the court finds that this school board policy that did not permit him to pray during games, both infringed Coach Kennedy's

speech rights and discriminated against the speech because of its religious character. And once again, the court says that attempting to comply with the Establishment Clause is not an acceptable reason that justifies the prohibition on the religious speech at issue here. So we are going to do a longer summer episode on the religion cases. There's going to be much more to say about this case. But for now, I think that, you know, we have the two rulings that we've talked about in the last couple of weeks, Carson, the case involving school funding that made it much harder for states to decline to fund religious schools, and this week's ruling, which makes it much harder for public schools to keep religious practice out of at least extracurricular activities and maybe out of public schools more broadly. And so together, these opinions do mean a lot more religion in schools, in kids' schools, and a barely discernible remaining wall between church and state,

that bricks on the ground like a couple of them. That's basically it, at least when it comes to schooling, I think is the takeaway from the last couple of weeks. Yeah. I did want to highlight an important concurrence in this case just because it suggests something that I've expressed some concern about, and it's a concurrence by Justice Thomas. just because it suggests something that I've expressed some concern about. And it's a concurrence by Justice Thomas. And Justice Thomas writes that in this case that is in Kennedy, the court refrains from deciding whether or how public employees' rights

under the Free Exercise Clause may or may not be different from those enjoined by the general public. The reason why this is potentially significant is government employees, we usually think like, well, when you're exercising government power, right, you don't possess the same constitutional rights as a private citizen, like usually constitutional rights are against the government. Usually constitutional rights like don't empower the government to do things to other people. But the idea that public employees,

that is government employees, might possess the same free exercise rights as private citizens was the theory that clerks raised as to why notwithstanding Obergefell. Hodges, the decision recognizing a right to marriage equality, clerks who had religious objections to marriage equality nonetheless did not have to issue marriage licenses to same-sex couples. And again, I just am concerned, Justice Alito's opinion echoed this, his separate writing echoed this as well, the idea that the

court just wasn't deciding the scope of public employees' free exercise rights, that they are carving this out and suggesting it as a topic of future interest. And that could really limit Obergefell, again, even if the court doesn't immediately overrule it. Yeah. And I mean, we should say the court has actually been really clear that when it comes to free speech rights, public employees have significantly reduced rights as compared to the rest of us. So this would be yet another example, if the court embraced this Thomas theory, of the elevation of free exercise clause rights above all other kind of recognized constitutional rights. So even though the court has said in cases like Garcetti,

you're not going to be able to have the same free speech rights if you're working for the government as against discipline and things like that as if you were a private citizen and when government could, of course, never discipline you for saying things when you are a public employee. And so the court has made crystal clear this term. It has some hierarchies in its mind regarding constitutional rights and the free exercise clause. And I guess the Second Amendment are kind of the two types

of constitutional rights that this court is most interested in aggressively protecting. I guess we should just do a lightning round. Yeah, let's do lightning round in the remaining cases. And as we said, some of these we will return to. So first in our lightning round, Ruan v. United States, this is a case about the Controlled Substances Act, which makes it a federal crime, except as authorized, for a person to knowingly or intentionally distribute or dispense a controlled substance. The case is more specifically about the standard of proof in those prosecutions. It arises in cases involving opioids, which can be prescribed to patients, but only for

legitimate medical purposes when doctors are acting in the course of professional practice. And the question here is whether the government had to show that a doctor knowingly or intentionally intended to provide drugs without authorization. The court holds that it does, that once a defendant produces evidence they are authorized to dispense a controlled substance, like if they're a doctor, the government has to show that the defendant knew that they were acting in an unauthorized manner. The opinion was by Justice Breyer. It was 6-3 on that question. There was a concurrence by Alito in which Thomas and Barrett joined in parts. And the opinion leans heavily on the background principle of mens rea, which is the idea that a defendant has to have a

guilty mind with respect to all elements of an offense in order which is the idea that a defendant has to have a guilty mind with respect to all elements of an offense in order to be convicted of that offense. And the concurrence would have said there's a good faith affirmative defense instead of the government having to prove that the defendant intended to exceed the scope of authorized practice. Next case is Concepcion versus United States. This is an important federal sentencing case we covered in depth in an episode with Tiffany Wright, formerly of the Howard University Civil Rights Clinic, now White House Counsel's Office, and Isha Anand at MacArthur Justice Center. She will be visiting at the Stanford Supreme Court Litigation Clinic this upcoming year. Very lucky Stanford students. So check out that episode for more information. But the case concerns the First Step Act. That law reduced the penalties for crack cocaine offenses and allowed courts to resentence individuals who were sentenced for certain crack cocaine offenses. The question here is whether, in those resentencings, courts could consider changes in the law or the facts that have happened since the defendant's original sentencing other than the first step acts changes. Here, for example, at the time of Mr. Concepcion's original sentencing, the court had classified him as a career offender with multiple prior convictions for crimes of violence that subjected him to increased sentences. But

subsequent changes and interpretations of the law made clear that Mr. Concepcion is not a career offender and therefore not eligible for additional time in prison. And the question was whether courts may take that into account or whether they should instead blind themselves to those changes and place themselves in the position that the court was at the original sentencing. Justice Sotomayor, writing for a majority of five justices, held that courts may take those subsequent developments into account. It was an extremely unusual 5-4 lineup, the three

Democratic appointees together with Justices Gorsuch and Thomas. Justice Kavanaugh wrote the dissent for the Chief Justice, Justice Alito, and Justice Barrett. Of curiosity, this means Justice Sotomayor had two opinions in January and Justices Gorsuch and Kavanaugh had none, leading me to wonder, did Justice Sotomayor steal this majority from Coach Kavanaugh? Did the coach get outplayed by Sonia Sunshine Sotomayor? That could also explain why this decision took a little bit longer to release, even though usually Justice Sotomayor is one of the fastest justices to get her opinions out. I love this for her. I hope that's what happened. I know, me too. Me too. So it's a super important federal sentencing case.

Again, the bottom line is that in First Step Act cases, courts may consider subsequent changes in the law and the facts as those things stand today when a defendant is being resentenced. We should also add a note of congratulations to Luke McLeod on a fantastic win in the first case he argued at the Supreme Court. Congrats, Luke. OK. Next case in the lightning round is

Torres v. Texas Department of Public Safety. I wish it were not a lightning round. I know you do too. But let's try to be brief. So this is a state sovereign immunity case. So right now, we're just going to note it and briefly describe it. The bottom line conclusion of the court's opinion is that when Congress is exercising its power to raise and support armies, it can authorize private citizens to sue states. So the court has concluded that the Constitution, and that's air quotes around the Constitution because it's not like in it or anything, but that it contains a principle of what is called state sovereign immunity. And that means that private citizens are generally speaking prevented from suing states without those states' consent. So I would love to go on a longer rant about this if we had time, but we don't today. You know, the court's decisions in this area are based on hand-waving, flimsy history,

and political theory that is, in my view, like pretty at odds with our constitutional system, like the idea that states are somehow above private citizens and that it would be beneath the dignity of states to have to answer suits by or from like lowly private citizens. But in a series of cases, the court has said, well, yeah, you know, state sovereign immunity is generally true. But for some special congressional powers, it was in the plan of the convention that states consented to being sued. As we suggested, when we previewed the case, this whole plan of the convention line of argument entails some pretty loose history and historicizing that is very loosely tethered to reality and invites the court to say, well, if you squint super hard and look at the text

and history, states agreed to be sued under some powers but not others because we can tell that some powers of the federal government are like really important and are supposed to be really supreme. Thus far, the court has said, states can be sued by private parties when Congress legislates under the bankruptcy clause, as well as when Congress is exercising its powers of eminent domain. And here it says the same thing about when Congress exercises its powers to raise and support armies. The opinion is 5-4. Breyer writes the majority. The Chief Justice and Kavanaugh are with him because they are very into war powers. Kagan concurs, basically saying this area of law is a mess,

but I am trying to follow the court's cases because some of us care about that. Barrett being in the dissent is an important sign about where she is on these state sovereignty issues, I think, more broadly. Okay, so next case in our lightning round is Biden versus Texas. This is a challenge to President Biden's efforts to end the Trump era remain in Mexico policy that sent asylum applicants to wait in Mexico while their cases were being processed. The Supreme Court ruled that actually federal judges do not get to oversee the president's diplomatic negotiations with another country and foreign policy. This is a case where a district court, a judge nominated by Donald Trump, invalidated the rescission of the Remain in Mexico policy, and then required the Biden administration to negotiate with Mexico to reinstitute the program

and keep the court abreast of those negotiations. And then the Fifth Circuit on appeal came up with this like kind of nutty John Roberts made me do it rule that the new policy the administration had issued, you know, after the district court struck down the rescission for the first time, wasn't actually a new policy and was therefore also invalid. Anyways, if that sounds insane or you're confused, like it is insane and it is confusing. Like it's not you. It's them. The John Roberts made me do it, which we don't have time to fully explain, is that Roberts basically, you know, did a version of this to the DACA rescission that the Trump administration tried to effect.

And so this was like a turnabout is fair play. If Roberts is going to strike down things Trump tried to do, then we lower courts can strike down what Biden is trying to do. Isn't that the basic logic? So that's completely the logic because, of course, the Trump, you know, second rescission of DACA was not actually a second rescission of DACA because after courts invalidated it for the first time, the Trump administration was like, we are not making a new policy. We are instead reaffirming our old policy. Whereas after the court struck down the first position of remain in Mexico, the Biden administration said, here is our new policy in response to all of your insane arguments about our first one.

So despite it being ridiculous that it was forced to do it, it still did a totally new policymaking. And they're not the cases are not on all fours or not on twos. They're completely distinct. And yet that is the basis on which these lower courts tried to force Biden to keep the policy going. Yeah. And as predicted, we did, in fact, find a Fifth Circuit opinion that was, it turns out, just barely too crazy for the Supreme Court. So the chief justice wrote for five, you know, maybe five and a half justices, depending on how you count, which we'll explain in a second. But five justices that actually federal law does not require presidential administrations to adopt the Remain in Mexico policy, as none of them had ever done before the Trump administration. And that the district court was wrong to install itself as the commander in chief and chief executive. So I said five and a half because the decision is five four with the three Democratic appointees together with Justice Kavanaugh in the chief

justice's majority. Justice Alito wrote a dissent joined by Justices Thomas and Gorsuch going full Xenophilito and embracing the Fifth Circuit ruling. And then I'll just note a passage in Alito dissent, which is like full on Fox News. He says, in 2018, a surge of foreign migrants attempted to enter the United States unlawfully at the United States-Mexico border. You can literally like see the like cable news, Chiron, layering caravan of migrants across the bottom of his opinion. That's the energy of the opinion, start to finish. It is. But Justice Barrett wrote a separate dissent that was joined by the justices in the Alito dissent. But Justice Barrett said she would not have reached the merits because

she didn't believe the court had jurisdiction. But in a sentence written only for herself, she said if she did reach the merits, then she agrees with the majority's analysis of the statute. In one line by the chief justice from his majority opinion that I did want to highlight, responding to the Alito dissent, he writes, under the actual text of the statute, Justice Alito's interpretation is practically self-refuting. You know Justice Alito is going to be steaming mad about this for the next 10 years. And he's going to be giving some speeches about how the Chief Justice has even further ruined the court. So as expected or predicted, this decision is a narrow win for the Biden administration. It sends the case back down to the district court and notes that there

are other administrative law challenges to the Biden administration's rescission of remain in Mexico that remain to be worked out. And Justice Kavanaugh's concurrence highlighted some of that. We did want to note a few other things that are in some ways addenda to some things we've talked about previously on the podcast. I am not as gifted in transitions as Melissa. So my attempt at a transition is just speaking of a fact free court. That was good. That worked well. That was not good, but I appreciate your support. I did want to note a development regarding the Supreme Court's opinion in Shin v. Martinez-Ramirez, which was the decision in which the Supreme Court said, if the state appoints you a second ineffective lawyer who fails to introduce evidence that your

first lawyer was ineffective, that's your fault, and you can't introduce evidence about that in federal court. Okay. So in Justice Thomas's majority opinion, he wrote that respondents, that is the defendants, do not dispute and therefore concede that their habeas petitions fail on the state court record alone. That is, he wrote that the defendants do not dispute and concede that if they can't introduce this new evidence, they lose their habeas petitions. Well, the lawyers for Martinez, Ramirez, and Jones filed a motion to modify the opinion to read instead that the court assumes without deciding for purposes of this decision that the habeas petitions would fail on the state court record alone if they

couldn't introduce the evidence. So they filed a motion to modify the Supreme Court's opinion. And the state of Arizona consented to their request to modify the opinion. Why? Well, because they never actually conceded that their habeas petitions would fail if they were just judged by the evidence in the state court record. The Supreme Court's response? Deny the motion to modify the opinion. I mean, there is literally unhinged,

unhinged and inaccurate dicta. I don't know where he got this idea from. In Justice Thomas's majority opinion, that seems to say the habeas petitioners agree they lose under this new standard, even though they did no such thing. They did not agree. And I truly do not know what to make of this. We made an obvious misstatement and we just refused to correct it. It's stunning. It is truly stunning.

The court corrects little errors in its opinions all the time. It revises its opinions all the time. You're invited to contact the reporter if you note an error in the opinion. And we all know there are sometimes pretty significant changes between the slip opinion and the final opinion, which is not in the U.S. reports for like five years these days. And I'm actually kind of at a loss at just how stunningly uninterested in accuracy the court appears to be based on this refusal. And I mean, just to again, spell this out, these are death penalty cases in which the court seems to have just announced the defendants agree they lose. That is, it has attempted to like resolve the cases under this new standard, even though the defendants did not agree they lost. The defendants should remain free and open. And hopefully the fact that the state, you know,

consented to their request to modify the opinion and seems to have recognized the court's error means that lower courts will actually decide, you know, if they do in fact lose under the standard. But it is just bizarre. I mean, like, I guess having five to six horsemen of the apocalypse means you never have to say you're sorry. Or wrong. Right. And you don't even have to say it. You can just quietly change the opinion and post it on the court's website.

But that seems like a bridge too far. I mean, it's really just wild. Okay, last couple of pieces of business. One, we got an important order in a Louisiana redistricting case. So background here is there was a 152-page district court opinion finding vote dilution, that is, that Louisiana drew its districts in ways that diluted the votes of racial minorities in violation of the Voting Rights Act, in marches the Supreme Court, and by a 6-3 vote, or at least seemingly by a 6-3 vote, the court stays the decision invalidating Louisiana's map. Justices Breyer, Sotomayor, and Kagan note their dissents. And that is the court putting back into force a map that violates the Voting Rights Act. And when you add that to what the court has already done in Alabama and Georgia, and that's not even touching what the court did to the state legislative map in Wisconsin, but at least just at the federal level,

we now have three federal majority-minority congressional seats that lower courts had found were required by the Voting Rights Act that the Supreme Court has by fiat taken away. So the on-the-ground consequences are incredibly significant. You can't violate the Voting Rights Act that the Supreme Court has by fiat taken away. So the on-the-ground consequences are incredibly significant. You can't violate the Voting Rights Act if the Voting Rights Act doesn't exist. That's true. And it's about to be declared unconstitutional. I mean... But in this kind of like weird time travel, what the court is doing here basically is implementing a decision it has not yet issued, but knows that it will, substantially diluting the force of what remains of the Voting Rights Act.

So the Supreme Court is poised to substantially narrow and dilute the scope of the Voting Rights Act's protections against voter dilution in Merrill versus Milligan next term. That's the Alabama case. But I think this case, I mean, doesn't even seem to line up with Alabama's theory for narrowing the Voting Rights Act in that case. It's a little bit technical, and so I don't want to explain a ton. But in that case, Alabama is like, well, you can't consider race at all when you're asking whether there's vote dilution. You just have to come up with these completely alternative maps without considering race. And only if those maps would yield another majority-minority district is that called for by the Voting Rights Act. But under that standard, there's still vote dilution in Louisiana.

So I don't even know what they're doing here. Yeah. And of course, they don't tell us because they don't have to. Because when you have five or six horsemen, you don't have to explain yourselves. I think that is the gist. Last thing to note, the court granted, just after issuing its last opinions of the term, a case that should make us all very scared, Harper v. Moore. That's a case about the so-called independent state legislature theory, really fanfic as we've previously referred to it. We're going to put a pin in that both case and issue

and come back to it this summer. But it's an ominous sign that they've taken this case. Oh, boy. That is probably all of the good news we have time for today. Strict Scrutiny is a Crooked Media production hosted and executive produced by me, Leah Littman, Melissa Murray, and Kate Shaw. Produced and edited by Melody Rowell. Audio engineering by Kyle Seglin. Music by Eddie Cooper. Production support from Michael Martinez, Sandy Gerard, and Ari Schwartz. Digital support from Amelia Montooth and summer intern support from Anushka Chander. The Supreme Court's egregious decision to overturn Roe v. Wade has ended the constitutional

right to abortion and endangered millions of Americans. You're angry. We're angry. Let's do something about it. From directly supporting patients who need abortions right now to electing pro-choice candidates in 2022 and building a progressive majority over the long term, you can find everything you need to fight back in our Fuck Bans Action Plan Hub at votesaveamerica.com slash row.