Strict Scrutiny - The Uncertain Future of the Indian Child Welfare Act

Episode Date: November 14, 2022

Rebecca Nagle, host of Crooked Media's This Land, joins Melissa, Leah, and Kate to recap the arguments in Haaland v. Brackeen. The case revolves around the Indian Child Welfare Act, which lays out a set of preferences for where Native American children can be placed for foster care and adoption. The challengers, white foster parents trying to adopt Native American children, are claiming a violation of the Equal Protection Clause of the 14th Amendment. But as Rebecca explains, tribal sovereignty isn't racial-- it's political.Plus, we take a look at the midterm outcomes and what they mean for the courts.Listen to Season 2 of This Land, all about the  back story of Haaland v. Brackeen.Read Rebecca Nagle's piece in The Atlantic, "The Supreme Court Case That Could Break Native Sovereignty." 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. Hello, listeners, 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 Alyssa Murray. I'm Kate Shaw.

And I'm Leah Lippman. And today we have a jam-packed episode with a lot of big cases the court heard last week, as well as some big court culture segments. But first up, we have some midterms to talk about. So general results, folks were predicting a kind of red wave, but really all we saw was some light spotting. Can I say that? It's menstrual humor. I think so. I'm going to go with menstrual humor because Dobbs. So folks, the red wave just didn't happen.

Or if it did happen, it was a wave that I could surf, which meant it wasn't much of a wave at all. So the Senate seat pickup in Pennsylvania was huge news. And at the time that we are recording this, the House majority is still to be determined. But what we do know is that it was not the bloodbath that was predicted. It was not Game of Thrones-style red wedding, which is what had been predicted by all of those people who said that nobody cared about Dobbs, all they cared about were gas prices and inflation and sticking it to the libs. So that was really heartening to see that Congress and

congressional control is much narrower than predicted. But what was also heartening was that there were some really big changes in statewide races. So the Michigan Democrats now control the statehouse for the first time since 1983. And there were Democratic wins. We're going to take a beat on the rest of Michigan. Not just the statehouses. The governor, the attorney general, the secretary of state. There are also big wins in the statehouses in Pennsylvania and Wisconsin where Democrats were elected to governor.

And so much more. Some really interesting and important wins here that some were just truly, honestly, not expected. And so this was perhaps a better night than many people were gearing up for. But there was some very interesting postmortem commentary, especially from Fox's Jesse Waters. So let's listen to that. But single women and voters under 40 have been captured by Democrats. So we need these ladies to get married. And it's time to fall in love and just settle down. Guys, go put a ring on it.

Hmm. Hmm. Control the women by marrying them off. This is the way for your party to actually turn your laws into victory. You got it. Jesse Waters. Genius political strategist. Marriage as punishment, literally.

Sounds like an article. I know. Someone should write that. Someone should write that. Melissa wrote an article about marriage as punishment. Many moons ago. Who knew? A post-recording update on the midterms.

With Senator Cortez Masto winning Nevada, Democrats have retained control in the Senate. But there is still a Georgia runoff, listeners, and that runoff still really matters. Reverend Senator Raphael Warnock in the Senate representing Georgia, rather than the Dwight Schrute-esque volunteer Deputy Sheriff Herschel Walker, who in addition to moonlighting as a Keystone cop, also occasionally moonlights as an abortion rights for my mistresses and me, but not for the character. No, it matters in very real ways. There are huge differences between a 50-50 Senate and a 51-49 Senate, including for issues like the courts, which we talk about on this podcast a lot. First, a 51-49 Senate would mean having a majority on each committee rather than vote deadlocks that require discharge petitions. Discharge petitions that are required after a committee deadlocks on a nominee, that's how a lot of nominees are held up and why they're

still waiting for confirmation, because the committee's deadlocked. And so in order to get a nominee out of committee, you need a whole other vote. And that whole other vote might require the vice president to be president, to break the tie in a 50-50 Senate on that vote. And look, the vice president, she's kind of busy. Second, a 5149 Senate also means no single Democratic senator can hijack or block nominations. This is where you hear me staring in Kyrsten Sinema. And finally, a 5149 Senate means Democrats can have two members absent and still hold votes. That's also really important. There have been several votes that have been held up or haven't happened at all because Democratic senators got sick with COVID or something else

and therefore weren't able to be present. So a 5149 Senate would allow Democrats to pick up the pace of judicial confirmations, and that could mean getting great nominees like Julie Rickleman or Dale Ho and more actually through the confirmation process in a timely manner. Plus, looking ahead, the 2024 map for Democrats in the Senate is it's challenging. There are Democratic seats up for election in purple states like Nevada, Washington, Pennsylvania, Arizona, New Mexico, Wisconsin, and also in red states like West Virginia, Montana, and Ohio. Given the Senate outlook, every seat is mission critical. So a 51-49 Senate would be huge. Figure out a way to pitch in for the Georgia runoffs to keep Reverend Raphael Warnock in the Senate. If you like this post-midterms glow you're feeling, make sure you feel it again in December. We wanted to talk some about

the midterms and in particular how they related to the court, you know, the courts generally and law. And one aspect of this story is the Supreme Court's effect on, you know, races at both the state and the federal level. You know, the Supreme Court established a bunch of important rules and changed the rules regarding districting and redistricting in ways that seemed to have meaningfully affected, you know, the composition of the House at the federal it's in part for that reason, you know, that Florida was able to ram through, right, a set of district maps that basically secured Republicans additional House seats, you know, seats in Congress. It's also happening in Wisconsin state houses where, you know, Democrats won 51% of the statewide vote, but will hold only 30 percent of the seats in the state legislature. It's not just partisan gerrymandering, though. diluted the votes of racial minorities, giving, you know, Republicans an additional seat in Congress. And then, you know, district courts doing the same in Louisiana and Georgia. The Supreme Court did the same thing when it came to the Wisconsin state maps. You know, this is also partially a story of the courts dismantling, you know, the preclearance regime in the Voting Rights

Act in Shelby County, dismantling like the protections against voting preconditions in Brnovich. And I could go on, but that's just, I think, an important part of the story that I didn't necessarily hear in a ton of the commentary about it. I think a lot of people did focus on the fact that a lot of the House gains, especially, were the result of redistricting and redrawn maps. But a lot of the pundits did not connect that to the work of the court, whether it was in Ruscio versus Common Cause, sort of abstaining from partisan gerrymandering, or the work that had happened in Shelby County,

or alternatively, the fact that the court had allowed through its shadow docket decisions, the map in Alabama and some of these other jurisdictions to go into effect, even though they were patently unconstitutional and unlawful. And that connection wasn't made. And we've talked about this before, when we did Merrill versus Milligan, we noted that the issue in Merrill is, you know, in the foreground, but the impact of keeping that map was going to be felt in this midterm election. We definitely saw that. And it could very well be that the House control comes down to one or two seats. It actually looks like the map might shake out that way. And if that's the case, the Supreme Court, without explanation, right, allowed maps found to unlawfully discriminate on the basis of race to be used in the cycle in Alabama and Louisiana. So that absolutely could be, you know,

in a very precise and direct way, the cause of Republican control of the House of Representatives. We'll see. Yeah, super nonpartisan, super neutral. Exactly. Very nonpolitical, non-ideological, not a bunch of partisan hacks. Just read the opinion, which doesn't exist. Okay. You know, but another part of the story is, I think, you know, the effect of the Supreme Court's rulings on other issues, in particular, Dobbs versus Jackson Women's Health Organization, you know, the court's overruling of Roe and how that affected turnout, right, and preferences in this election. You know, there were several initiatives on statewide ballots about reproductive freedom, and reproductive freedom went five for five on those ballot initiatives. Protections for abortion and reproductive freedom were added to state constitutions in Michigan, California, and

Vermont, and efforts to roll back abortion rights were defeated in Kentucky and Montana, which kind of invites this question that I hope organizers and the Democratic Party take seriously, which going to be the party in power in a meaningful way in basically the near term future elections. And so you should be able to run against a party in power, tell people what they are doing. And I think that that has to be part of the story. Which is what was so maddening about the coverage of the House races and the connection to redistricting, but not the connection to the court in redistricting, which I think was right. But, you know, Leah, I think we really do have to give it up for our boy, Sam Alito, who said women were not without political power. And apparently he was right. Is this a vindication of Dobbs and democratic deliberation or what? You know, as I said, when we initially discussed Dobbs, if the Supreme Court all of a said,

right, men do not have a constitutional protection against forced vasectomies, and then you put that issue to the voters, and a majority of people say you cannot forcibly sterilize men, I'm not sure that that vindicates a court saying you actually don't have a constitutional right against forced sterilization. But having said that, as we talked about in the episode before the midterms, I do think it was very important for people to come out and make a display of what the Supreme Court did is not okay. And it is important to us to try to push back and take a stand against that issue. And I, at least personally, feel like the issue of abortion reproductive freedom was underestimated in the effect it could have in this election,

particularly in the initial lead up to the election, like this period right before it. And honestly, a part of me was buying into this at the end, like I was very concerned about whether people were going to show up to the polls in a way that I felt like they were energized to do so in, say, July and August. And a part of me just wonders whether this is a reflection of a system that, at least from my perspective, is skeptical about or nervous about considering or focusing on women's issues and interests. It is fun for both the douchebag left and the Waters-type misogynists to make fun of the idea that women's issues and women's interests, right, should be treated seriously, should be given attention, right?

And they make fun of issues because, right, they are issues that affect women. Or they make fun of things that, like, women like or women care about. And just a lot of complicated emotions about what people are, we're predicting about this election and saying about, you know, what happened in it. Yeah. And I think that minimizing of the importance of that issue, I think there's, you know, kind of like a substantive normative valence to it. But I also think like one other explanation is like, young people were incredibly hard about this issue. And pollsters just didn't figure out a way to talk to young people. And I think that was part of the disconnect we saw between the polling and what actually happened

because they couldn't text them exactly they won't pick up their phones right you can they won't answer emails um and so unless you're running polls on tiktok like you're gonna it's not a way to do yeah right you're gonna miss them, no, I did not mean to like understate at all the importance saw Tuesday in a couple of different ways. So one, New York's courts had invalidated the state's initial map that was, you know, very much a Democratic gerrymander, but one that could have counteracted incredibly aggressive Republican gerrymanders in states where state courts allowed those gerrymandered maps to go into force. I think Nick Stephanopoulos from Harvard had a really interesting argument, I think, in Slate that basically said, you know, when thinking about whether New York should have, the New York court should have or should not have struck down this map, say it really was a gerrymander, it's important to take the nationwide view. And in light of these wildly gerrymandered Republican maps, the New York Court of Appeals should have allowed the democratically gerrymandered map to go into effect, but it did not.

And that's in part attributable to kind of New York specific conditions, which have to do with former Governor Cuomo's appointments to the New York Court of Appeals, which is our highest court here. So but there's just a broader lesson, which is that courts matter a great deal in terms of the maps we use to vote for our representatives in both state legislatures and in Congress. So that's, I think, dynamic one. Two, Whitmer, you know, who is going to get to serve another term as governor of Michigan, will get a Michigan Supreme Court appointment. That's super important. But the North Carolina Supreme Court flipped to GOP control. And that's important, right? One of the kind of deep currents in the Moore versus Harper case was that you had this Republican legislature really gerrymander this map, and the North Carolina Supreme Court, which at the time was under Democratic control, struck that map down. But that court's composition has now flipped, which I think will really change the political dynamics in North Carolina. And then one last thing to highlight, as soon as the results of this election

are in, all of our attention is going to turn to the Wisconsin Supreme Court election, which is scheduled for early 2023, which will determine control of that incredibly important court. And as we just talked about, that legislature is, you know, probably the worst partisan gerrymander in the country. And it will matter a great deal, the composition of the Wisconsin Supreme Court. So we'll be very focused on that. And I wanted to underscore something we had talked about on previous episodes, which was, you know, partially the importance of voting, partially the importance of getting involved. And when we talked about the 2020 election, we basically said, look, it felt like you needed to be above the margin of litigation. Democrats

needed to win in a way where GOP appointed judges couldn't, you know, then throw the election to Republicans. And I feel like people should look around at some of these races, a lot of these races and realize that they were kind of within a margin of effort, right? Like many of them came down to a few votes, a small number of votes. Those are things that make the work worth it. This means like there are results that you can achieve if you put in the work. And I just hope that people feel like some sense of hope or encouragement and a desire to find ways to get involved going forward, whether that's helping cure ballots, you know, in Nevada or Colorado, whether that is getting involved in the Wisconsin

Supreme Court race that's going to be, you know, in spring 2023, or just doing this again in the Wisconsin Supreme Court race that's going to be, you know, in spring 2023. Or just doing this again in the next election is so important. And again, like some of these margins are so small, and it just feels like that has to be a sign that it's worth fighting for. And you can accomplish something if you do the work. Yeah. One more thing to flag. There are currently 86 vacancies in the lower federal courts. Some of them do have nominees. Some don't. Some vacancies have not yet had anyone nominated to fill them. And, you know, it seems to me absolutely critical that President Biden and Senate Democrats get every single one of those seats filled. Let's turn to the recap. So Kate, what's up first? So first up is Holland versus Burkine. This is a major challenge to ICWA, the Indian Child Welfare Act, which establishes federal standards before states can remove Native children from their families and if they are removed for the placement of those children in foster care and adoptive homes. And to help us break down this

argument, we are so fortunate to be joined today by Rebecca Nagel, the host of Crooked Media's This Land podcast. And the second season of that podcast is focused on the Burkine case. And honestly, some of what Rebecca uncovers in the course of reporting on this case and its background will genuinely blow your mind. You should all listen to This Land if you haven't. Rebecca, welcome to Strict Scrutiny. Oh, thanks so much for having me. Okay, so for purposes of this conversation, we're going to focus on the oral argument that happened last week. We will start by briefly describing the legal issues in the case, since we didn't have the chance to preview it last week, and then we will dive right into the recap. Okay, so just in terms of level setting, Congress enacted ICWA in 1978 in response to a long history of, frankly, appalling treatment

of Native families by the state and the federal government. So, for example, during what some historians call the allotment and assimilation era, the Federal Bureau of Indian Affairs and its agents sought to re-socialize Native Americans into Anglo-American norms and culture. And one of the most pernicious aspects of this period was the pervasive removal of Native children from their families to boarding schools, where they were taught Anglo norms and culture and instructed to abandon Native languages and customs. In the mid-20th century, state-level child welfare authorities would often enter reservations, would determine that Native children were being neglected, and would remove the children from their families, often placing them in Anglo foster families or allowing removal of Native children from their families. And they argued that these episodes deprived the tribes of their future and constituted a kind of genocidal decimation of Native culture and sovereignties. And in response, the tribes lobbied Congress for

greater control over child welfare matters that involved Native children. And the result was the ICWA, which was passed with bipartisan support in 1978. But as Rebecca's podcast makes clear, in recent years, ICWA has come under fire from conservatives as perpetuating racial segregation and discrimination in adoption and child welfare, thwarting the rights of prospective adoptive parents, namely white adoptive parents, and conscripting the states into the service of a broad federal legislative scheme in violation of the 10th Amendment. And these cases reprise all of those themes. So the first question presented in the case is whether Congress had the authority

under the Constitution to enact ICWA. The challengers argue that Congress does not have the authority to regulate in like some area that includes ICWA. Maybe that area is adaptions or family law generally unclear when it exercises its power over Native American affairs. And this challenge builds on Justice Thomas's efforts to question the scope of Congress's powers in this area, efforts that were based on Robert Nadelson's scholarship. Nadelson was a law professor at the University of Montana. And in 2007, he wrote an article on the original understanding of the Indian Commerce Clause in the Denver Law Review, which argued for a very narrow reading of Congress's authority to regulate Native affairs. More recent scholarship, however, has debunked the narrow reading floated by Justice Thomas and advanced by Nadelsohn, including scholarship by Professor Greg Oblowski, a professor at Stanford Law School and former strict scrutiny guest. So in his article, Beyond the Indian Commerce Clause, Greg showed that commerce with Indian tribes was routinely used to describe far more than a trade of goods and

that founding era authorities viewed tribes as sovereigns. This prompted Nadelsohn to call Oblovsky, among other things, a shyster. Supreme Court, like if you are looking for an example of anti-Semitism, I have one for you. And it's not Harvard's admissions policies. Nadelson released a site check of Oblowski's work, which Greg immediately and promptly responded to, again, underscoring the rigor and care with which Greg approached this question. The second big question is whether provisions of ICWA regarding placement preferences constitute race discrimination because they establish protections and standards that facilitate the placement of Native children with Native families. And the challengers argue that this is unconstitutional discrimination on the basis of race.

Note, in a 1970s case, Morton v. Moncari, the court determined that Native American status was not a racial category, but rather a political classification. So this question implicates not only the line of cases dealing with ICWA, but also Morton versus Mankari and the whole question of Indian status as a political category rather than a racial classification. And that's not even it. There's a third question here, folks. And the third question is whether the ICWA, by requiring state courts to apply ICWA standards for both record keeping and placement preferences and prioritization and adoption and other child welfare proceedings, violates the 10th Amendment by conscripting state officials into a federal legislative program. Okay, so Rebecca, thank you so much for bearing with us while we did all this legal table setting. Now, can you talk to us about the stakes of this case? Just why is this case so important? the same question. And over and over again, what I heard is everything, you know, all of tribal

sovereignty is literally on the table. And it takes a couple steps for I think people to understand why I think you guys did a great job of breaking down the very complicated arguments that sometimes don't quite make sense. But so the plaintiffs in this case are arguing that ICWA discriminates based on race. And a lot of people in the US think of Native Americans as a racial group, but that's not how the law works. Under the law, we're a political group. And so tribes and tribal citizens have a different set of laws that apply to us really going back to the founding of the republic. And so if ICWA can't treat Native children or Native foster parents differently than non-Native folks, then what about health care? What about education laws? What about laws that allow

tribes to operate casinos in states where non-native casino developers can. If we're just a racial group, what racial group in the United States has their own land rights, their own water rights, their own environmental regulations, their own election, their own police force? And so the fear is that this case is kind of being used as the first in a set of dominoes, where if they can topple ICWA, then they can really gut tribal sovereignty with it. And I would just say, you know, you guys talked about the boarding school era and the Indian Adoption Project in the 50s and 60s. And both of those policies of removing Native children coincided with broader attacks on tribal sovereignty. And so it's not

the first time in U.S. history, tragically, that Native children have been used as the tip of the spear in a broader attack on tribes. So Rebecca, you were actually in the courtroom when this case was argued last week on Wednesday. How do you think the argument went? It was very interesting. I mean, there were four justices who were very obviously skeptical of the plaintiffs and Texas arguments. One of the things that they were asking was, you know, in the kind of first question that you brought up, does Congress have this authority to pass a law like ICWA was, OK, well, if

Congress doesn't have the authority, where do you draw the line? And so, you know, the plaintiffs are trying to draw the line in different places where it's like about regulating things, whether it's happening on tribal land or off tribal land, or, you know, that family law is this unique area. And every time they kind of came up with a new standard during oral arguments, the justices would kind of counter with the other laws that that would then decimate. I mean, there was this moment where Gorsuch said something like, I think we would be busy for the next several years, like if we ruled in your favor. But the thing I think that's concerning is that

the people, the justices who were expressing that obvious skepticism were only four. And so there were also justices who seemed to really buy into the argument. So Kavanaugh more than once asked these kind of very like loaded, to me, very like political questions of like, well, we couldn't pass a law that only white people could adopt white children or only Asian people could adopt Asian children, which isn't just not how the law works. And so yeah, I mean, I think what I took away is that I do think that there's a plurality of the justices who are interested in undoing ICWA. But I think that they're going to have a really, really hard time getting there legally. I think this is really interesting. Rebecca, you sort of mentioned like

their four justices were not used to thinking in a five to four world like that was, you know, two terms ago, we thought in five to four, but this is one of those rare cases where we have Justice Gorsuch, who has a particular propensity for federal Indian law and has been very, I think, assertive about protecting the sovereignty of tribes. And so there is a kind of weird, strange bedfellows coalition that's being formed with the three justices on the liberal wing and Justice Gorsuch. And so this is kind of a wild card and unusual. Yeah, absolutely. We've kind of said this before, but at this argument, it was really on display where it felt like the extent to which some members of the court as well as some of the Republican litigants who were emboldened by the Republican supermajority of the court, are really just content running on straight

up vibes and bulldozing through the niceties or formalities of law. And this came out in kind of all of the different arguments the challengers were making. So on the challenge to Congress's authority, as you kind of noted, Rebecca, you had the justices observing correctly, I'd add, that look, like we have said in previous cases that Congress's powers in this area are plenary. So like, where are you getting these limits from? So let's play this clip of Justice Kagan with the Texas Solicitor General, Tootie Judd Stone here. 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. Texas Solicitor General Judd with 2D Stone response kind of caused Justice Kagan to just straight up laugh in his face when he says he is doing,

quote, normative descriptions to identify these limits. You know, I think normative descriptions mean he's saying, here's what I think the law should be, Your Honor. So could you just do me a solid and make it so? And it provokes this response from Justice Kagan. I don't think you'll be able to find a place where the court has said what the plenary power means is these three things and these three things alone, and the plenary power doesn't extend further. Because after all, the court has said, I mean, I don't really believe in reading our opinions like statutes, but when the court uses the phrase plenary power tens and tens of times over decades and decades, I mean, plenary means unqualified.

It means all-encompassing. Now, I don't doubt what you said earlier, that it might have an occasional exception here or there, but it strikes me as a very odd way to think about plenary power, to just start, like, constructing categories and saying everything else is left out, when we've said over and over, everything except really rare things are in. This argument by the Texas Solicitor General also drew the ire of Justice Gorsuch, who basically told Stone he was just making stuff up and ignoring history. So let's play that clip here. Recognized Indians on the reservation.

That's simply not true. I mean, you can state that at the podium, but if I look through Title 25, there are health care promises to individual Native Americans who live in urban areas. Let's just take that one. First of all, Your Honor, that strikes me... Throughout the hours of argument, the three big challenges were kind of woven together. But did you come away with any sense about whether, you know, the conservatives, to my mind, were really receptive to the race discrimination, kind of the second claim, but I couldn't totally get a beat on where they all were with respect to this kind of antecedent challenge to Congress's authority in the first place to enact ICWA. So just curious what your reaction to that component of the argument was. Yeah, I mean, I think there was a ton of back and forth about what kind of authority Congress had. I mean, I think that there's also some kind of, there are like a couple tracks that they could go down, you know, if they say that ICWA can't

have this authority, because it's the area of family law. You know, there's like congressional laws about like, parental kidnapping, and also like protecting the parental rights of service members that I just am like, okay, Supreme court, you also want to eviscerate those laws. I think there would be some blowback from that. Or maybe not. I don't know.

But you know, I think the big thing that I walked away with was just how, you know, how you guys talk about like, it's vibes, not laws. I also think it's not the truth and not reality. You know, I mean, I think just the concept that these white foster parents were discriminated against is insane. For the most part, they won custody of these children when native family members like blood relatives also wanted to raise them, which is where all foster children should go, whether or not their case falls under ICWA. And then it was so hard to hear, especially the conservative justices really hype on this idea of the third placement preference in ICWA, which very quickly is ICWA sets out placement preferences of a foster child's not

reunified with their parents. And so that's another blood relative, another member of that child's tribe. And then the third placement preference is another member of a federally recognized tribe in the United States. And really, the reason that that preference is there is that, you know, like there are three federally recognized Cherokee tribes. There are tribes that have, that share a reservation, you know, I mean, there are oftentimes people who might be citizens of different tribes, but still have those relationships, you know. And so, but the third placement preference didn't come up in any of the underlying custody cases. So it's not even a type of discrimination that the plaintiffs legally should be able to claim that they experienced.

And so there are just all of these things about the case where it felt like the justices are really far removed from what's happening on the ground and the reality of how ICWA works in people's lives. And I think the other thing that was hard for me is as somebody who did a lot of reporting, you know, I went out and talked to the family members who wanted to raise those babies. And, you know, one native grandmother, the one native family member who won custody and had to spend six years fighting to adopt her grandbaby, first fighting like an extremely biased child welfare system, and then another three years in litigation with these white foster parents. And to frame, you know, like Chad and Jennifer Brackeen as the primary victims, or, you know, and a lot of like Kavanaugh and Alito's questioning, it was these imaginary foster parents that can't adopt Native kids as the primary victims of what is actually happening in foster care when I've reported on it and I've

seen it. It was just, yeah, I mean, I think just like what the court was concerned about to me felt so divorced from people's lives. And I think it shows just how the court is just really removed from how the law actually impacts people's lives in a way that I think is concerning. There's also, I think, this idea, again, around the whole actually impacts people's lives in a way that I think is concerning. There's also, I think, this idea, again, around the whole question of Congress's authorization to pass ICWA. There's something really unfair and wrong and discordant about an argument that recognizes the federal government has exercised plenary authority over Native tribes in the past, but it's been to pursue strategies of subordination and exclusion. And now that Congress is exercising its authority in a remedial way to protect Native

sovereignty and authority through ICWA, all of a sudden, that's the problem. That's the race problem. And again, everything that you said, I think the specter of race hangs all over this. And it's just really hard to disaggregate the question of race and the idea of these prospective adoptive parents, these white prospective adoptive parents as the victims. And that's such a Roberts court move as well. Sort of, you know, recasting and masterpiece cake shop. The baker who doesn't want to provide services to the gay couple, he's the victim because, you know, someone on the lower tribunal, you know, asks a question or says something about the fact of how religion has been used to exclude people in the past. So

again, I thought this was all really interesting. And so did Justice Sotomayor. So she also thought that the no law just vibes problem not only haunted the discussion of Congress's authority, but it also extended to the court's discussion of the equal protection challenges, including the challenge to the third preference, as you note. So let's hear her here. This is quite a theory you have. And at one point, Justice Kagan kind of asked the Texas Solicitor General Stone, like, is there any actual law in your brief? And that prompts this exchange. 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. And yes, Stone kind of admits there isn't, right, that this is just vibes in his brief for the great state of Texas. Two parts are under the first is I agree that those observations, those those statements of Texas's views have nothing to do with non-delegate or non-delegation, anti-commandeering or Article I 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, in part because there's- He said that's what it was. That's not supposed to be what's in your brief. I couldn't believe he just admitted it. On this equal protection point in particular, you know, there was an exchange I wanted to highlight from noted expert on race, law, culture, and rural Africans, Justice Samuel Alito. And that is when he posed the question, like, and it's about this third placement preference you flagged, Rebecca,

like, how much in common can tribes possibly have with one another since they were at war at the founding? And it's like, this argument is so blind to the history of discrimination against tribes, right? The history and practice of racial discrimination is like part of what? Forges collective identities, and it ignores that all Native tribes have a political relationship to the United States and classifying it as race, like that is the race discrimination, like the inability to kind of think about this critically was, was I have to admit, like even a little surprising to me, was it? Yeah, I would just say, I think, unfortunately, shockingly racist comments coming from federal judges is something as a reporter who covers these cases I've become used to. You know, on the Fifth Circuit Court of Appeals, there was a judge who was searching for a hypothetical and came up with some scenario about Native Americans having too many like drunk driving incidents.

So like pulling on this racist stereotype that all Native people are drunks. And then, of course, we had like Justice Alito's extremely racist comment on Wednesday that we're all at war are drunks. And then, of course, we had Justice Alito's extremely racist comment on Wednesday that we're all at war with each other. I think you saw really similar things the last time ICWA was in front of the Supreme Court. I mean, there was a whole exchange where the justices were literally asking each other what a federally recognized tribe even is, which is terrifying to think that they don't know.

And so yeah, I would just say that's a huge barrier for indigenous rights here in this country, you know, where we we have a really disproportionate amount of our cases go through federal courts, just because of the way that federal Indian law works. You know, we go up in front of the Supreme Court probably more than any other group in the U.S. And it's a place that has been traditionally very hostile to indigenous rights. You know, we don't have a great track record at the court. And I think, you know, you were talking about the like not law, just vibes attitude of this court. And it's a problem that Native people have been dealing with, I would say, for at least half a century, you know, when the justices don't like or don't

understand where the law gets them. If they follow it strictly, they just make stuff up. And courts have been doing that in the arena of federal Indian law for a long time. And so we'll see what comes out of this. But that's what Kavanaugh did in Castro. He just kind of rewrote the relationship that tribes have with states, you know, like wrote some crazy stuff that like, unbeknownst to law professors everywhere, like Worcester v. Georgia is no longer like good law, you know? And so... It had been abandoned. No big deal. where like Worcester v. Georgia is no longer like good law. You know, like, and so.

It had been abandoned. No big deal. Yeah, we just all missed it for like 150 years. But Kavanaugh like let us know what's really going on. I mean, you know, and that's kind of those kinds of opinions are actually really common in the area of federal Indian law. I do think that people who are having this moment of fear or panic or just like shock at how extreme the Supreme Court has gotten in the past couple terms

might have something to learn from Native advocates, because we've been dealing with this for a while, of just not feeling like the courts is a place that we can trust to, I mean, it's not even about upholding rights or anything. It's really just kind of coming down to following the law. Because we don't, you know, cases don't go to the Supreme Court, because it's going to be a big win. It's like, it's mostly trying to prevent a loss. And unfortunately, that's what this case is. On that note, Rebecca, you know, I think definitely folks in the civil rights community can definitely sympathize with that particular perspective. But it's also worth noting here,

and again, this is taking another beat on this whole question of race and equal protection and the status of tribes here. But it is worth noting that at least since the 1980s, so right after ICWA, there were certain facets of the African-American community that argued for an ICWA style preference for placing black children with black families and limiting the prospect of transracial adoptions into white families. about the impermissibility of prioritizing native identity in the placement process without reference to what is a broader and very pitched debate about allowing non-minorities to adopt and parent minority children. And that was definitely on point here. And it's even more connected than you think, because the person who spearheaded fighting that policy, and so it was stopped actually by congressional policy because there's like and I'm probably gonna mess up the name but it's a multi-ethnic

placement yeah yeah yeah so the guy who worked on that is named Clint Bullock oh yes he's an Arizona Supreme Court justice now and before he was an Arizona Supreme Court justice, he was the head litigator at the Goldwater Institute. And his wife is also a Ginny Thomas correspondent, email correspondent. I think her name is Shauna. Is that right, Leah? Yes. Yep. Yeah. So Clint Bullock is like one of the people because, you know, in the past decade decade ICWA has been challenged nearly as many times as Affordable Care Act and it's just like tiny tiny handful of people who've kind of got this whole litigation strategy off the ground and Clint Bullock is one of the main people who did it so he got funding from the Bradley Foundation for Goldwater to start what he called a state-based litigation alliance to bring kind of like how there's coordinated bills in states,

the conservatives wanted to do the same thing, but with strategic litigation. And so Clint was trying to get that off the ground and used anti ICWA cases as some of the like early test cases. And so yeah, it is all connected because like him and Roberts go back, you know, this whole idea that the way that the world should be is race neutral, or you know, that that's true justice is that our law is like blind to race is a decades long project. It's so a historical to what the 14th Amendment was and why it was passed and the historical context around it. And what I think has happened is, you know, I think people, we're talking about affirmative action, I think people

don't realize like how gutted it already has been made by these folks. But one place where they did not have much success is in the arena of federal Indian law. And so it's sort of they're coming back around at that. But yeah, it's it's very connected. And also, and you, I mean, you're, you teach this, so you probably know better than I do. But there were a bunch of studies about, you know, how those children did who were then placed with families that weren't of their ethnic and racial group. And it was not good, you know, it's not well. And so it's also, again, just about this rhetoric around race and not really about people being really invested in the well-being of children. Just quickly to your point on how gutted affirmative action already has been even before the argument last week in the Harvard and UNC cases.

I thought it was really telling that the government, the federal government's lawyer, Ed Needler, was just like as these conservative justices were posing hypos about placement for, you know, on the basis of race or with, you know, Catholicism, Kavanaugh said, neither was like, oh, no, no, obviously, that wouldn't be okay. It's like there's already been an abandonment of that sort of even the federal government's like, well, maybe that's not this case. There was just like, you know, that was already sort of conceded by the federal government. But the federal government, of course, said that this is different because it is a political as opposed to a racial classification. I said this on Twitter, but I want to put it on the podcast. In particular, I wanted to give a shout out to Ian Gershenkorn, who was arguing in support of ICWA on behalf of several tribes.

I thought he was phenomenal. So, Rebecca, you've already kind of alluded to some of the details about how ICWA actually works. And I at least thought, like, Ian did a pretty good job explaining to the justices how ICWA actually works. And I at least thought like Ian did a pretty good job explaining to the justices how ICWA actually works. You know, this case has so many parallels to the affirmative action cases, some of which we've already alluded to. And one is just how the challengers want to depict ICWA to be something that it's not. Like they want to suggest that states are identifying a placement that would actually be in the best interest of a child. And then they somehow reject that placement in order to keep a child with a Native community. But as Ian explained, like, that is not how ICWA works. And he emphasized ICWA is based on decades of research and findings

about how the general best interests of the child standard that states were using resulted in breaking up Native families and homes against the best interests of both children and Native communities. So maybe let's play a clip of this primer on ICWA. Do you think that ICWA incorporates the familiar best interests of the child inquiry that are applied in family courts throughout the country? So I think I'd have to say the answer to that is no. What ICWA does is modify that because Congress made the judgment that the best interest standard was being implied in a way that resulted in unwarranted removals.

What Congress did was create a system it thought was in the best interest of the child, but not by adopting the, quote, state best interest of the child standard because it found that that was being applied in a discriminatory way. Now, so you're on. There's been a lot of back and forth about good cause and seems like good cause is important in the statute. I will say candidly, having looked at the cases, there are three, the state courts are in a little bit of disarray as to whether the preferences are sort of binding, whether there's a straight, free-floating best interest standard that sort of, that works through good cause, or whether, as I think is probably the way Congress intended it, that the placements are the default setting, and good cause provides a way to rebut the presumption.

Now, Interior has explained how good cause works. It involves, you can take into account the decisions of the views of the parents, the views of the child if the child is old enough to express them. You can take into account sibling attachment. You can take into account bonding with foster parents as long as it was not done illegally through ICWA. The thing you cannot take into account is socioeconomic status. So what the Casey brief and others say and what the reason why medical professionals are here, states are here, family rights advocates here, is because ICWA is the gold standard. It adopts those evidence-based

presumptions and allows for flexibility to protect the best interests of the child. The thing that was so interesting about this, Leah, is that it's not even as though the advocates were saying that ICWA was basically preempting the prospect of the children being placed in these homes that were found to be homes that would be fit and in their best interest. It's actually that they're suggesting that the native homes would be unfit, would presumptively be unfit. They're literally recapitulating all the dynamics that ICWA was drafted to respond to because the judges in state family courts were implementing these same biases and ICWA was trying to override them. And you saw the justices just channeling the pre-ICWA. No, it was a microaggression at work. Like these families are presumptively unfit.

And I think like you don't have to look further than the stories of the three plaintiffs who brought this lawsuit to see exactly why the Indian Child Welfare Act is still necessary. So the three plaintiffs collectively try to adopt four children, or three groups of plaintiffs, I should say, because they're couples, try to adopt four Native children. One child who, which was frustratingly the focus of arguments, was actually born after the lawsuit was filed and amended. So legally, her case isn't part of the lawsuit in front of the Supreme Court, YRJ. But anyways, all of the children, all four Native children had a blood relative who wanted to raise them. And every Native blood relative got pushback,

whether it was from a social worker, a family court judge, a foster parent, or all three. And only one grandma was able to adopt her grandchild, and she had to spend six years fighting. And so when you look at how the Native families were treated, they faced objectively way more hurdles than the plaintiffs who are bringing this case. And so this idea just doesn't even match the reality on the ground. It doesn't match what happened in these cases. And it's also just not matching, you know, what's happening routinely and the way that ICWA is applied. Yeah. And, you know, before Ian Gershengoran stood up at the podium or lectern, I thought that there were five votes or I heard five votes for ruling against ICWA on equal protection grounds. After he sat down, I think there is a possibility he found a fifth vote to say, look, the challengers haven't identified an actionable equal protection theory against the entire statute and how it's actually operating. In reality, as you note,

maybe in individual cases, there could be a challenge, but those cases just haven't ever arisen and might not ever arise. So let's play him effectively rebutting this equal protection challenge in particular to the third placement preference. It is based on the view that all federally recognized tribes and members of those tribes share a common political relationship with the United States. That's what renders it political rather than racial. Every member of a federally recognized tribe shares that political relationship. Now that then begs the question that a number of the justices have focused on

about is it rational? That's a fair question and that's a fair debate. Let me explain why I think it clearly is rational. And some of this, Mr. Needler touched on, and I agree with. It has a clearly, remember, we're talking about a prong that was never applied to any of the plaintiffs here, and on a facial challenge, right? All it has to have is a plainly legitimate scope, which it does. In Alaska, for example, it is quite common for Indian members of one tribe to live on the reservation of another. The preference applies quite often there, right? What the court has been worrying about is this

kind of Maine to Arizona hypo, right? That we identify some tribe in Maine that's going to somehow get a preference. Well, that case has never happened that we've been able to find and ABLE counsel on the other side has been able to find. And I would submit on a facial challenge in a situation where it's never applied, that would be very odd to strike down a congressional statute. I will say, though, that for the reasons I've said, I think it is actually quite rational. If the court disagrees, as you suggested. Sure, and the quickest answer to that, Your Honor, is that in my experience, or I should say, my experience talking with people who actually experience this, which is as close as I've gotten, is that the way this comes up most

often actually is tribes, is individual Indians living on the reservation of another. And so they are building exactly that community. This is not some random tribe plucked from the ether that all of a sudden gets a preference in the real world. There's no limitation to that. Absolutely, Your Honor. And I am not here to say, in fact, I think I've conceded, that it would be extraordinarily difficult as applied challenge

in the kinds of, again, I'm using as a shorthand, the Maine to Arizona hypo. But I don't think this is at all difficult on a facial challenge in the real world where this plays out. Because what's happening in the world, and remember, we're talking about not a single example of this appears in any of the briefing that I have seen, okay? And so what's happening in the real world is that individuals are, individual members are living on the reservations of another and then the preference is going to that tribe.

And, you know, I think it's possible he changed the direction of the argument and maybe even the outcome of the case. You know, the justice that looked like the most tuned out was Alito. There were long periods of time that he was kind of like looking at the ceiling. I just want to note that this argument

was the day after the midterms. These things could be related. But sorry to interrupt you, Rebecca. I wanted to back up because you guys have mentioned a couple times that Ian Gershon Gordon was a really effective advocate. And there's a little bit of a backstory of how that happened. So in the early 2000 tribes came together, tribal leaders came together with NCAI, the National Congress of American Indians and Native American Rights Fund, NARF, and started what they called a tribal Supreme Court practice. And so what they realized is, you know, there's this tradition of when you take a case to the Supreme Court, you use the Supreme Court litigator, it's this very kind of elite status.

But those people knew crap about federal Indian law and were doing a horrible job representing tribal interests at the Supreme Court. And so tribal leaders got together and say, OK, we're going to take folks who have this kind of practice of working at the Supreme Court and train them up in federal Indian law so they can do a good job of representing tribes. And Ian Gershon-Gorn is one of those people. And so that there was a lot of work from a lot of people, decades literally of work, that went into having an advocate that could appropriately even answer those questions, which I would also say that needler who representing the federal government was not during the oral arguments. And I think that that was a frustration to see the federal government not put somebody who's a little bit more knowledgeable up to defend such an important law. Yeah. And I mean, Ian actually explicitly referenced the

fact that he had talked to people with experiences under this statute while answering the questions, seemingly invoking the training that went into preparing him for this argument. Yeah, absolutely. This has been a walkthrough of what were a very long series of arguments about a case that involves many different legal issues. Rebecca, any other things, take-homes our listeners should be aware of as we're kind of awaiting the outcome in this case? Yeah, you know, I think that folks who are concerned about the integrity of the high court, who are concerned about the integrity of our democracy, to be blunt, really need to follow this case. And I think it's a test for the Supreme Court

on a lot of different levels. I think it's a test of whether or not they'll follow the rules of civil procedure. And kind of, you know, what like, I think the last clip goes to is, you know, whether or not the plaintiffs have standing. I think it's a test of whether or not the Supreme Court is really going to look at the facts of the ground and what actually happened in these cases, or if you can bring a lawsuit where you kind of make stuff up to undo federal statutes. And I also think it's a real test of precedent. I mean, again, the foundation of federal Indian law goes back to the founding of the republic. And so if the Supreme Court here in 2022 feels like it can rewrite that, then what else can it not rewrite? And so, you know, I think it's important for folks to pay attention. And I think it also raises a

question of what kind of democracy do we want to have in this country? You know, Wednesday was a really heavy day for tribal leaders. I saw a lot of people crying. I saw the emotion was really heightened. And I think, you know, after everything that has been taken from indigenous nations, after everything that we've lost, that we're still having to fight so hard to hold on to what we still have and what is legally ours. I think it's an implication for a democracy more broadly. It's what kind of country do we want to live in where if the law can't protect us, who can it protect? Rebecca, I don't think we could have found a better note to end on. Thank you so much for joining us today.

Thanks so much for having me. And listeners, if you want to catch the truly riveting backstory of these cases, please check out season two of Rebecca's podcast, This Land, which is also produced by Crooked Media. Okay, so the court also heard this week Health and Hospital Corporation of Marion County, Indiana versus Tulefsky, a huge case about how certain federal laws and federal rights can be enforced and really whether they can be enforced at all. So the particular case is about statutes governing the treatment of patients in nursing homes. So under federal law, when a state accepts federal money for health care and nursing care programs, they must abide by certain conditions, including following certain procedures

before prescribing the use of psychopharmacologic drugs to patients in nursing homes. And they also have to follow certain procedures before they transfer or discharge patients from nursing homes. And the plaintiffs in this case claim that a nursing home administered psychopharmacologic drugs to Mr. Tulevsky, which worsened his memory loss and awareness, and that they also transferred him to a facility that was hours further away from his family, both things that pretty clearly violated the federal law that establishes conditions on how states are supposed to run nursing homes if they accept federal funds to do that. So one issue in the case is whether spending clause statutes can be enforced by a Section 1983. And we've talked about Section 1983 before. It's a general civil rights statute enacted during Reconstruction that allows you to sue state and local officials who violate your federal rights. Now, spending clause statutes are where the federal government offers states or private parties some pot of money but attach a certain set of conditions on it. Like, here's some money, but if you take it, you have to use the money to set up health insurance for

the needy or unemployment insurance or, as here, how nursing homes have to be run. So again, they come with these prescribed kinds of conditions. And this is how a bunch of important federal-state cooperative programs are actually operated by offering federal money to the states who then set up the program and operate it in compliance with these federally prescribed conditions. And so the question in this case is if a state violates one of the conditions of that program, i.e. violates one of the conditions that attach to the federal grant, can a private party sue? So think about Medicaid provisions that require states to set up insurance systems that allow Medicaid patients to see qualified doctors of their choice. The question in this case is whether, under all these spending programs, the beneficiaries of those programs can file federal suits when

their rights are violated. So obviously, this is kind of technical, but it has enormous implications because if the private party can't sue, then in practice, there may not actually be a remedy if the state violates the conditions in a spending clause program. So this is back to one of the themes we highlighted for this term, like you have a right, but you may not have a remedy for that right. And that's the case for a number of different reasons. The other possible remedy here is that the federal government just takes away all of the money if the state isn't abiding by the conditions that were prescribed for receiving the money in the first place. And in practice, that rarely happens because if it did, the federal government wouldn't just be hurting the state that's violating the conditions of the

program. They would also be hurting all of the beneficiaries of the program who the federal government wanted to protect by placing the conditions on the spending in the first place. So if a state refuses to meet its obligation to offer insurance to groups that are eligible under Medicaid, for example, the consequence would be that a state will receive less money to provide health insurance to those same people, punishing the beneficiaries for the state's failure to abide by its obligations to the federal government. And also, as Justice Sotomayor noted during the oral argument, neither the federal government nor the states can possibly investigate every violation of these conditions, which is why the court's cases have assumed that Congress

permits private enforcement under Section 1983. This particular statute requires the state to set up some kind of administrative remedies. So the stakes of this case are really whether these patients have rights in practice. As the respondent, the lawyer for the plaintiffs, explained at the argument, these plaintiffs tried the administrative processes. They were trying to do everything they could. He said this family was crying out for help and using every mechanism at their disposal. They were turned down by medical malpractice attorneys because the claim wasn't worth enough. They were told they couldn't enforce

the state administrative remedies without a state court order. And Section 1983 was, you know, the last resort, the thing they were desperately trying to use, right, in order to help their father. So to the argument that Section 1983 says that every person who under color of state law subjects another person to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws shall be liable, the state kind of had this to say. Well, sure. It says a state is liable for depriving people of rights that exist under law. And sure, Congress puts conditions on spending programs in laws, but are spending programs really laws, Your Honor? And I'm not even kidding about that. That was the

tenor of the argument. The state's argument is essentially that Section 1983 says you can enforce laws, but spending clause statutes aren't really laws, they're contracts. And the statute makes no distinction between spending clause statutes and other statutes. And so the state argument continues, spending clause statutes, because they're contracts, and when Section 1983 was enacted, there were background common law rules that only contract beneficiaries specified in the contract were able to sue. That means the beneficiaries here cannot sue. Wild. And no, that is the truly insane theory at the heart of this case. And a few of the justices raised some questions, comments, concerns about this line of argument. So first, as Justice Sotomayor pointed out, the text here is pretty clear, right? Conditions in spending clause statutes are still rights secured by law and are therefore enforceable via Section 1983. And Justice Jackson had just another banger of a question invoking the history of Section 1983, which, as Melissa noted, is a Reconstruction-era law that displaced state remedies and state common law rules about who can sue and who can't precisely

because those remedies and rules were insufficient to protect federal rights. So let's play that clip here. Yes, but that was my question, too. So let's explore a little bit. I mean, I don't understand your suggestion that an express cause of action, which I think we can all agree is what 1983 is, that says that you can sue to vindicate individual rights that are created by the Constitution or laws of the United States. I don't understand why that carries with it common law that preceded it under circumstances in which you couldn't sue. So you seem to be suggesting that this isn't a situation in which Congress was actually providing a cause of action where there wasn't one before, which when you look at the actual history of 1983, that was precisely what Congress was doing. It was a part in 1983 of the Ku Klux Klan Act where Congress had looked at the situation of states not giving forum, not giving a cause of action to people who were being terrorized. adopting and incorporating those principles and saying, here's this new law and we're going to incorporate the common law of excluding you from the court. In fact, Congress created the right

in order to allow people to go to court. So while there might be situations in which we carry old soil into our interpretation, I don't understand how you can interpret an express grant of authority to go to court to enforce rights created by law, consistent with the opposite situation at common law and say we have to limit the current right because in common law you didn't have that right. I just love her bringing her Palmetto High School history prize winner energy to this every single week, every single week. Every single week.

And she had this sick rejoinder when, you know, the lawyer for the state attempted to challenge this view. All right. So if it's usually we only get to step in and look at common law or whatnot to assist in the interpretation of a statute. But if you agree that this is unambiguous, that Congress was giving people the right to enforce, you know, laws that gave them certain rights. And if you agree that FINRA is a law, maybe you don't. I do.

Okay. Then it seems to me odd to suggest that we as a court can reinterpret the word law in Section 1983 to carve anything out. Then the whole colloquy kind of devolved into the lawyer trying to mansplain to JusticeRA, that's the wrong question, respectfully. The right question is, what rights law of contracts gives us the clearest window into what 1983 covered. Sir, you know, yes, free practice tip, do not mansplain to Supreme Court justices. Do not tell the first Black woman who's on the Supreme Court she is asking the wrong question, especially when she is transparently and explicitly following up on a question that Justice Barrett had just asked you and you

answered without fighting it. And also, she's just filleting your argument. Like, she's saying you have no evidence that the Congress that wrote 1983, you know, didn't view spending clause statutes as laws when they are enacted into law. And I just cringe. Just sit down and enjoy your food and stop this. Okay, so a second question in the case is whether this particular spending clause statute governing nursing homes can be enforced via Section 1983. And the state seems to want to say it can't be enforced because it's not clear enough that it creates rights. But one big problem with this argument is that the challenge provisions literally say rights all over, and they are clearly about the individual rights of individuals in these facilities. And so then the state adds, well,

there are these alternative remedies that plaintiffs have, but those are the state administrative remedies that the statute requires states to establish as a condition on the receipt of federal funds. And state administrative remedies generally are not sufficient to foreclose a remedy under Section 1983. That's true as kind of an abstract principle. And the plaintiff's lawyers, I think, detailed recitation of the kind of Kafkaesque efforts to seek administrative relief in this very case, I think, illustrates why administrative remedies should not be deemed sufficient to foreclose a remedy under Section 1983 in this case. The federal government, though, had a third theory that provoked some notable exchanges here. And this alternative theory runs something like this. Many nursing facilities are private, and you couldn't sue private nursing

facilities under Section 1983 because they're not acting under color of state law. So that means Congress wouldn't think it's weird not to be able to sue nursing homes that violate the conditions in Section 1983. And the lawyer for the federal government argued that most nursing homes were private, though maybe that's not true in Indiana where this case arose. But what could this theory, if you took it seriously, what would it mean? Well, one thing I think is very clear, it would seriously limit remedies under major civil rights statutes, including but not limited to Section 1983. So for example, concerned alumni of Princeton, Representative Justice Samuel Alito asked about Title IX and the breakdown of public and private institutions under the statute. And

the thinking seems to be that if most schools that accept funds under Title IX are private, that would mean you couldn't actually sue state schools for violating Title IX via Section 1983. So that just opens up a whole line of opportunities for people to commit sexual assaults in public schools. So there's also this sense that, as Justice Kagan pointed out, this theory isn't asking about the text structure or history of a law, but what Congress knew about the market participation, which seems unusual as a method for interpreting statutes, like is this free market textualism, Adam Smith textualism? Milton Friedman textualism.

Look at what the invisible hand is telling you the statute means. And that led the lawyer for the Solicitor General, the federal government, to say this, which, honestly, if this doesn't cause the court to reject the federal government's position, I'm not sure what would. So, Justice Kagan, the best analogy we've been able to come up with is that in, I'm hesitant to say this, but in this court's ACCA cases, the court has sometimes looked- You should hesitate to say that. But the court has sometimes looked at what was the state of play when Congress adopted ACCA? How would it have played out? You know, what were the state rules of burglary

at the time it was adopted? And we think the analysis is, you know, similar here in that you're looking at what would Congress have expected? You know, Justice Kagan's response underscores she just has zero fucks left to give. If you listen to the clip, you can hear the chief and Justice Thomas laughing uproariously and talking about how ludicrous it would be to import the court's Armed Career Criminal Act cases into the spending clause context just because the Armed Career Criminal Act cases, they're a disaster. They are a mess because they require

justices to try to do a survey of state law about different crimes at the time that federal law, the Armed Career Criminal Act was enacted. And it just doesn't go well. And there's no reason why they would want to or think they should replicate that inquiry under the spending clause anyways. The bottom line is this case is about enforcing the rights of millions of Americans who rely on spending programs. You know, Medicaid, for example, provides health care to 76 million people and is the primary funder of long-term care in the United States. And this could affect other federal programs like CHIP, the Children's Health Insurance Program, Temporary Assistance for Needy Families, and SNAP, the Supplemental Nutrition Assistance Program as well.

We briefly also want to just touch on two administrative law cases the court heard last week, and both are about the court's authority to hear challenges to various agency actions. So we've got two, Axon v. FTC, which is about whether district courts have jurisdiction over constitutional challenges to the FTC structure and procedures, or whether Congress instead required those challenges to proceed in the courts of appeals. And SEC versus Cochran, which is similarly about whether district courts have jurisdiction to hear cases about whether to enjoin ongoing SEC administrative proceedings because of an alleged constitutional defect with the SEC. I think the thing to understand about these cases is that it seems very important to these petitioners that they can always and immediately go to a district court judge in Texas or Florida to seek

whatever crazy relief you're asking for without an excess of process either inside an agency or in the court of appeals needs to happen right away in the district court because YOLO. That is kind of what these cases are about, whether you can immediately go to a favorable district court to try to get them to invalidate the administrative state,, more or less, rather than first going through the agency's own internal procedures. And look, if stare decisis is for suckers, I guess these cases are about whether constitutional avoidance is for assholes, as well as adjudicative efficiency, because part of the reason we require people to first go through an agency's administrative processes is there might not be a reason to invalidate the agency process if, say, the agency concluded someone wasn't liable

under the statutes or regulations or, like, ruled for them on a statutory ground without having to invalidate the entire agency. And aside from that, you know, norm of how adjudication is supposed to work, this is also just kind of always the way administrative processes have worked for, you know, almost a century at this point, you go through an agency, then you challenge the agency in the Court of Appeals via a petition for review. And now there are going to be two tracks of litigation, you know, in all cases involving agencies, one happening in the agency, and then the Court of Appeals, with another one challenging the constitutionality of the agency in a district court. It's just another way of kind of gumming up the railroad and bogging down agencies. And it was just clear

from this tenor of the argument that the justices were inviting the challengers, you know, how can we write this opinion so you win, but it's not like opening the door too much. And, you know, on the surface, these cases are about where and using what process challenges challengers get to argue that entire statutory schemes are unconstitutional. And in these cases, the argument is that these agency administrative law judges are unlawfully insulated from presidential removal. And in addition, Leah, I think you're sort of reading the tenor of the argument that these challenges are likely to win in terms of where and when they can bring their claims. Some of the questions seem to have this very concerning embedded premise that, of course, the argument is going to be ultimately successful, right? The chief in particular, I thought, was giving this off. And if agency ALJs

can't be protected from political reprisal or removal because that excessively insulates them from presidential removal and political control, that is like a very technical sounding but really important additional step toward further dismantling the administrative state. So good times, y'all. Another case that was heard last week is also worth noting Mallory versus Norfolk Southern Railway Company. This is a personal jurisdiction case about who is subject to the authority of state courts. So who you can sue as defendants.

And the specific question here is whether a state can require a corporation to consent to jurisdiction in the state as a condition for doing business in the state. And we're not going to recap this in depth because time is limited. And Leah is absolutely obsessed with Tlefsky, the spending clause case. But I'm just going to say let's put a pin in Mallory so we can come back to it. It's what Justice Ginsburg would have wanted. Another development, Trump appointee Judge Mark Pittman found Biden's student loan relief program unlawful, vacated it nationwide. The case will next go to the Fifth Circuit. And Pittman is the same judge who ordered the Biden administration to continue the Trump administration's remain in Mexico policy. In this opinion, Pittman relied on the court's latest deregulatory anti-democratic administration doctrinal weapon, the major questions doctrine. And the plaintiffs in this case are people who are not even eligible for loan forgiveness or not eligible for the full loan forgiveness but want to be. That is to say they are not in any way injured by the program, and yet the court somehow found that they had standing for reasons. Also worth noting that one of the plaintiffs here actually did receive some government assistance in the form of a $20,000 PPP loan.

I love that those are public. It's just – I have to say all of the filings in Texas District Court sometimes get me turned around because there's another Judge Pittman, Robert Pittman, who was the SB8 judge. I was like, I thought you were like, I thought you were a reasonable person. You're a good Pittman. Yeah. There's good Pittman and not good Pittman. And they're both in Texas. And hopefully there's about to be a Judge Ho and a very good Judge Ho. So, you know, we'll see whether that remains true. Listeners, it's that time of year. It is the annual debating society get-together.

Last week was the annual Federalist Society Convention. And listeners, as befitting a debating society that definitely and affirmatively does not take positions on issues and definitely is not partisan, political or ideological, the Federalist Society invited three Trump appointees, Gorsuch, Kavanaugh and Barrett, to be in attendance, as was their mentor on the bench, one Samuel Alito. So very, very neutral and nonpartisan fellas. Good work. And the neutral nonpartisan nature of this get together continued when the very nonpartisan, non-ideological author of the very nonpartisan, non-ideological opinion overruling Roe versus Wade, that is Sam Alito, got a standing ovation when he walked on the stage at the Federalist Society. And he just looks so fucking pleased with himself as this was happening.

Well, so he looked better. Like he affirmatively looked better. He he affirmatively looked better. He was so happy. Not puffy. He looked awful at the Phillies game. Oh, yeah. For sure. And the group shot, terrible. Terrible in the group shot. Again, we don't know what's going on with him, but he sort of perked up for this.

Wind beneath his wings. All right. So let's talk a little bit about his remarks. During those remarks, he said that he fondly recalled Federalist Society luncheons at a Chinese restaurant in the early days. He displayed a fortune cookie he said was from those lunches. He kept it all these years. He said it foretold that the group would spread across the nation and would continue until its work was no longer needed. I call bullshit on that fortune cookie. That fortune cookie does not say that. There's no fucking way. You just like, trust me, that's what it says. I read it. I mean, we know he is extremely careful about the facts that he provides, so I am sure that that's right.

I would love for Justice Sotomayor to provide a photograph of said fortune and it's really just something else. You will overrule 50 years worth of precedent with absolutely no principle behind it. That's what it really said. And that's just getting started. Yeah, there it is. Yeah. Back to the speech. And that's what I realized. Stephen Markman, a former Michigan Supreme Court justice. I mean, my question is, like, does this cross an important line? You know, because Justice Alito said questioning the court's legitimacy did.

Is this praise by a team that you are invited to speak to your ideological fellow travelers, like literally standing up and cheering over ruling Roe? I just I want to know where the line is. And not to be outdone, Justice Barrett, or as some people on this podcast have called her, Lady Safe Haven, also made an attempt at humor. It's really nice to have a lot of friends at this debating society where I get to ignore the pleas and voices of people whose lives and health and safety and families my ruling jeopardizes. Like, this is all so hilarious. Uprorious it is. Is that kind of the vibe? Was that the vibe? I think so.

And I'm wearing sequins. Oh, yes. I noticed that too. And I'm wearing sequins. I'm telling you, the red shoes was the first the first step. I knew she had it in her like there was some sartorial flair there. The red shoes were the first tip off. The sequins are next. It's only a matter of time before we get a cape robe. If she does come out with a cape robe, it will be the one thing I'm on board for from her. Prop up the patriarchy, but make it fashion.

I'm shallow. Okay, so earlier in the programming, Chief Judge William Pryor on the 11th Circuit decided to use the platform of this debating society. And this actually was really seriously so disturbing. My God.

So he used this platform to attack journalists, including friends of the show and prior guests, Mark Joseph Stern from Slate, Dolly Lithwick also from Slate, Ellie Mistal of The Nation, Rick Hasson of UCLA. So, I mean, I guess we should, because it's important for people to hear this stuff, but it turns my stomach, but let's play those clips here.

And no less an authority than Mark Joseph Stern, and really, is lesson authority, has explained Federalist Society judges tend to hire Federalist Society clerks, and the conservative legal movement's radicalization machine produces an endless line of young lawyers even more extreme than their predecessors. As the writers at Slate, Dahlia Lithwick and Rick Hasson, explain, the Federalist Society has, quote, styled itself a debating society long after it ceased to be anything of the sort. And as intellectual luminary Ellie Mistel has said, usually FedSoc is able to operate in relative anonymity, quietly working to destroy the equal protection rights of women and minorities. So if I understand this correctly, he is literally making fun of these journalists for deigning to question whether the Federalist Society is a debating society or just a debating society. And he is doing that while illustrating that the Federalist Society is most certainly not just a debating society.

Right. This is a judge calling out private citizens and journalists by name and really reinforcing the idea. Also, the same judge who hired Justice Thomas and Janice Thomas, clerk who may or may not have said something racist while she worked for Turning Point USA. So we've referenced him before. The very same. Oh, yeah. Just checking the record. Yeah, that's Judge Pryor. And, you know, this is the backdrop.

This is earlier in the day and probably throughout the day and certainly at the big gala dinner that night. They are celebrating their win in Dobbs and also saying it's inappropriate for journalists to point out that they are celebrating their win in Dobbs. And also saying it's inappropriate for journalists to point out that they are celebrating their win in Dobbs and elsewhere and that they have an agenda and do take positions. It was pretty astonishing. You know, also on this, the Federalist Society is just a debating society beat. Nina Totenberg, another guest on the podcast, had this interview with Professor Stephen Calabresi, one of the founders of the Federalist Society, in which Professor Calabresi told her that the Federalist Society's board of directors voted that he asked any journalist he talks to not to identify himself as either a co-founder of the Federalist or co-chairman of the Board of Directors. And that's because of his work, you know, against the independent state legislature theory, or perhaps his recent remarks indicating that he believes reparations are constitutional.

I mean, it's just, you know, this is a debating society ruling that you can't take the anti-coup position in a debate. That, like, if you say voters in elections should decide elections, you can't be in the debating society. Like, this seems like a position to me. Just a little much here. Yeah. I mean, I think that the interview topic was Moore versus Harper, in which Steve, together with Akhil and Vic Amar, filed an amicus brief. And I do have to say props to Steve, who was a friend and was my constitutional law professor, for saying about, you know, his fellow travelers in the Federal

Society and this bizarre constraint. It's ridiculous. It's absolutely ridiculous. So he said this to Nina, like, you know, he filed the brief he filed. I was very curious about sort of what that revealed about the current status of the relationship between Steve and the Federal Society. I have no idea. But, you know, Nina correctly was like – I love internecine warfare. I love – I mean, it's like Marie Kondo. I love mess. Let's do it. In other news, strict scrutinizers, there has been a merch restock.

So get yourself over to the Crooked website and get loaded up for the holidays on no law, just vibes, T-shirts, as well as YOLO court wear. Exactly what you want to wear when you're celebrating the Houston Astros win. And for a little holiday box housekeeping, Crooked Coffee is all about making your life a little less chaotic. So they just launched three limited edition holiday boxes to make gift giving easy. Each box is filled with full-size bags of delicious medium and dark roast coffee, plus a fun activity that isn't scrolling through Twitter, since Twitter might not be long for this world. Anyways, pick from three different boxes for three types of people.

The extremely online box with witty magnetic poetry for your fridge, the craft lovers box with a learn to crochet kit inside, and the home baker box with the Insta-famous apple cider donut kit from Farmsteady. Oh my God.

That's so popular, it's almost always out of stock. I want that one. Plus, this holiday season, every order from Crooked Coffee will support Vote Save America's Every Last Vote Fund to make sure every voice can be heard in the face of unprecedented voter suppression. There's a limited quantity, so head to crooked.com slash coffee to shop before we sell out. And as always, Strict Scrutiny is a Crooked Media production hosted and executive produced by me, Melissa Murray, Leah Lippman, and Kate Shaw. It's produced and edited by Melody Rowell with audio engineering by Kyle Seglund, music by Eddie Cooper, production support from Michael Martinez, Sandy Gerard, and Ari Schwartz. And digital support from Amelia Montooth. Thanks for listening.