Divided Argument


Episode Summary

We try to catch up after the Court's big opinion dump this week, and end up focusing on Ysleta del Sur Pueblo v. Texas, Denezpi v. United States, Viking River Cruises, Inc. v. Moriana, and the DIG in Arizona v. San Francisco. Come for the legal analysis, stay for the health insurance advice.

Episode Notes

We try to catch up after the Court's big opinion dump this week, and end up focusing on Ysleta del Sur Pueblo v. Texas, Denezpi v. United States, Viking River Cruises, Inc. v. Moriana, and the DIG in Arizona v. San Francisco. Come for the legal analysis, stay for the health insurance advice. 

Episode Transcription

[Divided Argument theme]

Will: Welcome to the Divided Argument, an unscheduled, unpredictable Supreme Court podcast. I'm Will Baude.

Dan: And I'm Dan Epps. Will, I think maybe we don't even have to preface this one with an apology and an excuse. This is just like a week later, right?

Will: The most unpredictable thing of all, sometimes we might release podcasts more than once a month.

Dan: Yeah. I think we would have gotten a lot of flak for not releasing one pretty soon because the court decided in the last week, 1, 2, 3, 4, 5, 6-- 11 cases.

Will: Well, you said decided 11 cases. They disposed of 11 cases.

Dan: Yes. They resolved. I don't know. One of those is a DIG dismiss as improvidently granted that we should get to in a few minutes. But yeah, so basically, the court had a bunch of things on its collective desk and has gotten 11. So, I think last time we were speculating about how long the things would go, how late into July, they might stretch things. Does this give you more confidence that maybe they're going to catch up-

Will: They're going to catch up.

Dan: -and race to the finish? 

Will: I think I in particular was really pushing-- it's going to be July 15th narrative. I retract it, I was wrong, apparently, had a lot of stuff in the hopper.

Dan: Were they just finished-- they heard that they were like, “Gosh, if the punditocracy, if Baude is saying we're not going to make it, we’ve got to show him wrong. Everything that was almost ready to go, let's get it out.” 

Will: In my defense, I will say, I think one of the questions was were they actually going to really decided all these cases, or they're going to start finding ways to ditch them. And the fact that they took what I thought was going to be probably the hardest end of term case, Arizona v. City and County of San Francisco, decided to just DIG it instead. [crosstalk] 

Dan: The hardest of any of them. 

Will: I think that was going to be the messiest case. Yeah.

Dan: Messiest, like more complicated. I mean, obviously, the most-- you've got to think Dobbs is going to be the most heated.

Will: Sure, but in a way, we’ve seen the Dobbs majority opinion. We can guess what the dissent and currents will say. I assume they can get that up to date tomorrow, out of the door tomorrow, if they really wanted to, or, I guess Tuesday is the next--[crosstalk]

Dan: I mean, they could get the majority out if other people are willing to join. [crosstalk] 

Will: I assume the dissent, you'd read it in a night. I assume it's already written.

Dan: Yeah. I though assume that it's the case where-- I always think that these are less effective but the dissents in big cases like this, they go through everything. They're like, “Oh, here's what they say about the history. Let me respond to every little thing.” And it feels like you lose some of the rhetorical force of a dissent, if you get to be like an 80-page dissent and you respond to every single thing in the majority, then maybe you should just pick your overarching response and stick with that. But we may see different versions. We may see opinions from each of the dissenting justices, when that case comes down.

Will: Yeah, that's true. There may not just be one.

Dan: Yeah. Well, so do you want to talk about Arizona v. City and County of San Francisco first just to get it off our plate?

Will: Yeah. Let's just talk about it briefly. So, the question, I think, actually presented in this case was the standard for appellate intervention, the Biden administration had been sued over-- actually, I believe it was the Trump administration originally had been sued over a Homeland Security Rule, the public charge rule sets out when you can admit somebody as a lawful resident, permanent resident who might eventually become a public charge need public-- [crosstalk] 

Dan: There's some restriction on doing that. And then, the Trump administration had interpreted that in a way that was more restrictive in terms of immigration. 

Will: Yeah. And then, the rule was invalidated by some lower courts. The Biden administration decided not to appeal. And some states, including the State of Arizona, wanted to defend the rule when the administration wouldn't.

Dan: I think it's maybe even just one tweak to that, as the government did appeal some of those. And then the Biden administration was like, “Actually, never mind, dismiss the appeal.” 

Will: Right. 

Dan: Just by the way, outside of the context of this case, the ability of the government to do that has always troubled me a little bit in the sense that you can use this almost like sham litigation. I don't think this is not exactly what happened here but you can go get somebody to sue the government and say, “This thing is unlawful.” The government can say, “Oh, we agree, we don't want to enforce this statute.” And then you get a court order, and then-- [crosstalk] 

Will: Yeah, that's not really-- This is exactly what happened in the case. So, formally the case was--

Dan: It wasn't a sham suit at the outset is what I'm saying. It's very similar. Yes, I agree.

Will: Yes. Formally, the question was whether Arizona could intervene. But as the court began to hear arguments in the case, and the arguments are just amazing, it just turned out there are so many moving parts and premises that were hard to-- not all the Justices were on the same page about, and it was hard to think through. Normally, when an administration wants to get rid of a prior administration's rule, they go through notice and comment. But if you've been sued and just choose not to appeal, that seems like maybe it presents an end run around notice and comment.

Dan: Yeah. 

Will: And it's most worrisome, obviously, if you can also just manufacture the suits in the first place, you didn't manufacture the suits, the fact that you can use the convenience of the suit to circumvent notice and comment is a potential problem. It turned out there are competing decisions in different places, and so there were also questions with the scope those. At some point, the question became what Arizona was going to even do when they intervened, and it turned out part of what they wanted to do to intervene was to intervene so that they could claim the decision was moot, so that they could then have the lower court decision vacated under Munson [unintelligible 00:06:07] which seems like a little bit of a strange bank shot, the reasons they wanted to do that. 

And then, my favorite is just at argument, there's a point where Justice Kagan starts pressing Brian Fletcher arguing for the government, isn't their position going to lead to the sham litigation problem? He says, “Oh, well, don't worry, we've got a solution to that. All you need to hold is that district courts can't issue nationwide injunctions against the federal government,” which is our longstanding litigation position. And then, the sham litigation problem becomes much diminished, because one, district court's decision striking down the rule won't give you a reason to make it nationwide. And Justice Kagan was so displeased with that answer, because of course, she does not want to answer the question about the scope of nationwide injunctions. The court's been avoiding that for a decade. And so, to be told--[crosstalk]

Dan: Why do you think she doesn't want to answer that? I mean, presumably there should be an answer one way or the other. Strategic ambiguity?

Will: I think there's a lot to be said for the view that's just generally improper, but that's clearly a majority of the court-- I guess there's clearly not a majority of the court to categorically rule them out and not a majority of the court to say like, “Oh, yeah, this is fine. Every time something is struck down, that should just be struck down nationwide.” And then it's not quite clear what to say in between. You could just say something mealy-mouthed, [crosstalk] all the time.

Dan: If we allowed them for stuff that we like and don't allow them for stuff that we don't like, does that work?

Will: [crosstalk] 

Dan: That's kind of how I feel about it.

Will: The court could say that. That could work. I mean, now the district courts-- [crosstalk]

Dan: [crosstalk] 

Will: Right. Although will it be for stuff that we like or for stuff that the court issued in the injunction likes because--

Dan: Yes. Well, it's stuff that the Supreme Court likes, because they'll ultimately--

Will: Yeah. Anyway, so just once it became how many-- and this is what the Chief Justice, joined by Thomas, Alito, and Gorsuch write an opinion concurring in the DIG, which just basically says this that this case involves a "mare's nest" apparently. 

Dan: I’ve got stuff to say about that. 

Will: Yeah, of issues that could stand in the way or complicate reaching the question. So, we're going to DIG it, but we might reach it later. And then particularly, they cite a Seventh Circuit case on appeal that was referenced repeatedly in the oral arguments that might present a subset of these issues more cleanly. I mean, I assume it would be the Seventh Circuit, you're now on notice that Supreme Court might use you to get to this issue later.

Dan: Yeah. Take a close look. Mare's nest, I was doing slight bit of internet research immediately before recording, I do. Believe it or not, I do sometimes do some research. And this was the thing I researched. It's a phrase dates back hundreds of years. The original meaning has two meanings, though and Chief Justice Roberts is using the more modern, arguably incorrect meaning. The original meaning was like a thing that you misunderstood. Like you thought it was one thing, and then you were confused, and it was something else. And the more modern 20th century meaning is just something that's a mess.

Will: Like a rat's nest. 

Dan: Yeah, but it doesn't really make sense because mares don't have nests obviously. Mares are horses. And so, the original meaning makes more sense because you're seeing something that doesn't really make sense. 

Will: Yeah.

Dan: But it's not really a thing. I don't know. I thought Chief Justice Roberts very meticulous. I thought he would be more of a purist on idioms, but apparently not. 

Will: Yeah. I mean, I just heard it without knowing the history. I thought of a mare’s nest, I thought, “Well, they don't have nests, but if a mare had nest--” When you hear about horse stables, the main thing you think of as it's like full of horse excrement, so I thought that's what he was saying. 

Dan: The first thing I think of as full of horses, but when you go straight to the excrement--

Will: I have toddlers-- [crosstalk] 

Dan: I also learned that rats’ nests are apparently pretty orderly. Rats are not actually super messy, in terms of nesting. They do have nests.

Will: Should really say like a professor's nest or professor's office.

Dan: My office is regrettably messy. Okay, well, if you want to know more about DIG’s court opinions, the court dismissing as improvidently granted petitions, friend of the show, Columbia professor, Bert Huang, has a new piece in the Columbia Law Review Forum called A Court of Two Minds where he looks at a bunch of examples where the court decided to DIG cases or maybe to decide not to reach an issue at an earlier thought it was able to reach or interested in reaching and trying to draw some conclusions for that. So, check that out. What do you think about the word 'improvidently' and 'dismissed as improvidently granted'? It sounds like it was unlucky or something. They don't really say like “dismissed as mistakenly granted” or something.

Will: Right. I like it because it captures its ambiguity that's in fact present in the practice. Sometimes, the DIG reflects badly on the law clerks or the lawyers, like the lawyers tricked us what this case is about, or they changed their arguments or law clerk failed to notice a crucial jurisdictional problem or whatever. Never me, of course.

Dan: I only did that like five or six times while I was clerking, I'm sure. 

Will: I just tried to make sure it doesn't get found out until I've left the building. 

Dan: Yeah. Well, I put other people's names, like I put your name on the cert memos where I did that.

Will: On the other hand, there are somewhere it's a DIG and the truth is just the Justices found it hard. They found it hard, they're busy.

Dan: Or sometimes people told them there was an issue that was going to make it-- they couldn't really reach the issue and they didn't want to believe that. The law clerks are like, “Yeah, this is not-- this is a mess.” And they're like, “No, but--”

Will: We'll find a way. 

Dan: Yeah.

Will: And so, 'improvidently appropriately' captures both mistakenly granted, and well, it's not a mistake, but we just don't like it anymore. So, I actually think it's a great bureaucratic ambiguity. 

Dan: All right. Well, that's done. Don't have to worry about that those issues until next term at the soonest.

Will: It makes the Fed court supplement a lot easier though. 

Dan: [chuckles] Oh, there you go. All right. So, that's off the table. 10 more actual decisions. I will say that this is a large volume of opinions. If it wasn't overwhelming in terms of the number of interesting opinions. This was the core, getting rid of all the stuff that it really was bored with, so we could focus on the more interesting things. We do have some stuff to talk about, but I would say that the average interest level of this batch of 10 opinions is low to medium. Is that fair? 

Will: Yeah, and mercifully short. Very few long opinions, I thought, which is nice.

Dan: True, they have less time. So, maybe they're just trying to crank out shorter ones. But yeah, even the ones we're going to talk about today, we're on the shorter side, which is a good sign. Anything you want to say about the ones that we're not going to go into in detail?

Will: I guess I'll say one case about the Medicaid reimbursement rules, American Hospital Association v. Becerra, a unanimous Justice Kavanaugh opinion that the government lost. That was interesting, because I think that argument, it was pitched as one of these big Chevron cases. There's a question about whether or not Chevron to be involved and the court kept up with one of its favorite recent practices of just deciding Chevron cases with no reference to Chevron. [Dan laughs] So, it just loses, their interpretation of statute is wrong, and there's just no mention of the case Chevron. I think if you really squint, the court does at some point say, it's using the normal tools of statutory interpretation. And if you'd read Chevron, there's a footnote on Chevron that says, “You should first use the normal tools of statutory interpretation before deciding whether to defer.” 

Dan: [chuckles] 

Will: So, you can connect the dots and figure out what their Chevron theory is but there have been occasions recently where advocates for the court have-- I don’t remember who it was, but who even said, like, “Now, of course, we do have that doctrine that says you should defer to the government but I don't want to mention it by name, because I know a lot of the Justices don't like it.” So, that's interesting.

Dan: Yeah, putting off that battle, I guess. 

Will: Yeah. It's a different constitutional avoidance. Rather than construe a statute to avoid a constitutional question, you just pretend [crosstalk] that some doctrine doesn't exist, you don't have fight about it.

Dan: Yeah. Well, it seems to have worked on that case, a unanimous opinion. It feels somewhat rare these days where you get to the bottom of the syllabus, and it says whoever delivered the opinion for a unanimous court, and that's it, there's not delivered the opinion in which everybody joined except for this part, and concurrences and dissents. It's just short and sweet. Everybody joins, let’s make it easy.

Will: If they're going out of the building by the end of June, that's what they've got to do. [crosstalk] 

Dan: Yeah, I guess they do. This is going to be a contentious term, no matter what. And I can imagine they're all going to want to get out of town as quickly as possible, given especially-- there's going to be a lot of political fallout. So, probably just want to get out of DC. 

Will: Yeah, they want to get to undisclosed locations where people can't easily find them. 

Dan: Well, yeah, I wasn't even thinking. But do you remember when shortly after NFIB v. Sebelius was decided, and all your friends were super mad at the chief for allegedly switching his vote. And he went, and he was doing one of these boondoggles, I think, in Malta, and he made some comment about how he was really glad to have decamped to an island fortress after that term. 

Will: Yes.

Dan: See if any of them head to fortresses. 

Will: Yeah. So, shall we talk about Bingo? 

Dan: Yes, well, though, can I do one thing? It was an episode-- we should do that thing where we at the beginning, we asked people to rate and review on the Apple Podcast Store or anywhere else you get the podcast. We are continuing to grow the audience. I can say the last couple episodes are on track to be our most downloaded episodes ever. So, we're up to 16 listeners. But so please rate and review, please share the episodes and recommendations about the show to your friends. I still am encountering people emailing me about stuff and I say, “Oh, have you checked out the podcast?” And they somehow missed that the podcast even existed, and we're now more than a year old. So please, help new listeners discover the show because we think that there is an audience of at least, 27-28 people who would be interested.

Will: Yeah, and I'm not going to lie, I get more excited about recording and more likely to pester Dan about it when I see new reviews.

Dan: Yeah, positive feedback loop. It's a virtuous circle. Let's [crosstalk].

Will: What about negative reviews, Dan?

Dan: Those have a different effect. 

Will: Yeah.

Dan: Sometimes they're funny though. Okay. So, you wanted to talk about the Bingo case? 

Will: Yeah. 

Dan: Which is also known as Ysleta del Sur Pueblo v. Texas. Yeah, I was a little unclear on the pronunciation. So, I went and did what I should be doing most episodes rather than just saying, “I don't know how to pronounce these,” which is what I usually do. I listened to how Chief Justice Roberts pronounces them when he calls the case at the beginning and I said it the way he pronounced it, which means even if it's wrong, it is authoritative. But I thought he did make an effort to do a little bit of a Spanish accent when calling the case. So, I don't know if he practices but good job. That's the case. But as you said, it's about Bingo, which apparently is high stakes. It's a high stakes case about high stakes Bingo.

Will: Well, whether it's really a case of Bingo is one of the many controversies in the case that may have to be sorted out on remand. The reason Bingo is part of the case is because the Indian Gaming Regulatory Act, which is the framework for tribes' ability to carry on gaming operations, which is of course economically really important to a lot of tribes, divides games into different kinds of classes, the same way the Controlled Substances Act divides drugs into different classes, different levels of rules. Bingo gets more permissible rules than games like blackjack or baccarat. I don't totally know why. Well, that's just based on our cultural associations about hardened gambling addicts playing blackjack and nice little old ladies playing Bingo or what, but there's the statute of reason to privilege Bingo, which of course then creates incentives to develop new forms of Bingo. 

The form of Bingo at issue in this case can be seen in another photograph in the dissent by the Chief Justice Roberts. A lot of these photographs recently that shows pictures of look what like slot machines, but apparently are inside the slot machine. Slot machine is playing Bingo for you. So, when you pull the lever, it's essentially giving you a Bingo card, drawing Bingo draws, and then deciding whether you won and so maybe it's Bingo.

Dan: Yeah. This is complicated. I feel we need to make sure that I understand how this setup works before we dig into it, but that's the Bingo situation, whether it's Bingo or not. But we have this complicated set of legal questions. You said part of it involves the IGRA, Indian Gaming Regulatory Act. But then, there's this other question about how that interacts with this other act that Congress enacted to regulate the particular tribe here, the Ysleta del Sur Pueblo, in relation to the state of Texas. Can you help me with that?

Will: Yeah. There's a statute that the court just calls the Restoration Act, but I think its official name is the Ysleta del Sur and Alabama and Coushatta Indian Tribes of Texas Restoration Act. A specific statute adopted in 1987 about three tribes in the state of Texas that previously maybe had lost their federal trust status and are then restored. And there's a complicated backdrop. But the most important thing is that this act creates two rules that might seem to be in tension about the application of Texas law to gaming activities on these tribal lands. One is a rule that all gaming activities that are prohibited by Texas law are prohibited in the reservation. That seems straightforward. But also, nothing in the statute shall be construed to give Texas any authority to regulate anything on the tribe. So, anything the state prohibits is prohibited, but the state can't regulate anything.

Dan: Let's just do this clear statutory language, because it might matter. It says nothing in this section shall be construed as grant of civil or criminal regulatory jurisdiction to the state of Texas. And so, the word 'jurisdiction', there's going to be a disagreement about how broadly to read that in the case. But as you said, with that setup, okay. So, if the gambling activity is prohibited by Texas, generally, can't do it on the reservation, okay. But they also can't--[crosstalk]

Will: [crosstalk] 

Dan: -jurisdiction. Okay.

Will: Right. And so, by itself that I don't know, we might just scratch our heads to figure out what to make of this. But then, the other crucial piece of context is shortly before the statute is enacted, the Supreme Court decides a case about these concepts of prohibition and regulation, California v. the Cabazon Band of Mission Indians, which is the Supreme Court's first decision, I think, about state jurisdiction over gambling on Indian reservations, you’ve got another statute, because these statutes have not been enacted yet, in which the court tried to set up this dichotomy between prohibition and regulation. They say, “If the state says nobody can play the game, then it's prohibited.” It's just like, Blackjack is banned in Texas, then it's banned. But if it's not banned, then it's regulated. And then, the state can decide what the regulations are it wants. 

So, you might have thought if you're just being textualist about this, that anytime there's a rule saying you can only play Bingo if the stakes are $5 a card, you can only play Bingo in churches and other charitable organizations, that you could say, “Well, non-church Bingo is prohibited," but Cabazon Band seems to problematize that way of thinking. [crosstalk] 

Dan: Yeah, it's a statute-- it's like a level of generality problem, whether you're prohibiting this one thing, or you're just saying, “Bingo generally is fine, but we're regulating the ways in which you can offer it.”

Will: Right. And so, the puzzle is how much to read these statutes in light of the court decisions to give life or to make sense of these terms. And exactly as you say, if you do want to take this approach, which is what the majority is doing, you have these levels of generality problems like, what is the unit of analysis? Is that one game, Bingo, that's either prohibited in its entirety or not? Or, are there multiple games? High stakes Bingo, low stakes Bingo, church Bingo, slot machine Bingo that could each be prohibited or permitted in their own terms? Is that enough? Do you have anymore?

Dan: Yeah. I think that's good setup. We're going to have actually a 5-4, kind of retro. [laughs] We used to have more 5-4s when the court was more closely divided, but we've got a 5-4 here. We've got Justice Gorsuch delivering the opinion of the court, and he's got Breyer, Sotomayor, Kagan. So, of course, it was the Liberals, plus Justice Barrett, okay, swinging on this one. Dissent by--

Will: Have we seen this lineup before or is this the first time?

Dan: I don't know. I would like to give you an answer. But for all the reasons that has caused me to have so many excuses for recording, I'd say that the last year or so has been one in which I have not paid as close attention to the court as I normally do. And so, if I were to make a statement, I would probably be wrong. But I would like to-- [crosstalk] 

Will: Yeah. 

Dan: And then, we have--[crosstalk] 

Will: And as you say, that leaves the dissent with Roberts, Thomas, Alito, and Kavanaugh.

Dan: Yeah. So, sort of interesting Conservative split here. Justice Gorsuch, very, very reliable vote for-- he seems to really take their issues very seriously and passionately. He's written a bunch of opinions and we'll read another one in a few minutes about the sovereign interests of Indian tribes. I don't know if that's coming from Colorado, what it is in his background, but he seems to be very committed to these issues.

Will: Yeah. And do you think that's intention with his other public methodological commitments? This is a question that came up in commentary. When Gorsuch is presenting himself in general, where he presents himself as saying, like, “I'm not for the big guy, I'm not for the little guy, I'm just on the side of the law, whatever side that is,” but it does seem like he ends up on the side of the Indian all the time, because just the Indians always have the law on their side, and they get screwed a lot, it's the only way I can see that. 

Dan: Yeah. I think what he might say is turns out that the law has been biased against Indians because they're the little guy and I'm just restoring taking the law seriously. It's really don't think he would understand himself as bending the law to favor his favorite party, but it does, as a takeaway.

Will: But if you imagine you're going to talk to Gorsuch about an Indian case, or one of his law clerks or a lawyer, do you think like, “Boy, I've really got to show him how the statute works”? Or, do you think you just think like, “Well, we're on the side of the tribe, so we've basically got him in the bag”?

Dan: I think you would take it seriously. I would.

Will: I guess one other possibility is maybe also, this is something that's happening at the cert stage that we don't sort of really see. If you're Justices Breyer, Kagan, and Sotomayor these days, you might usually be reluctant to grant cert in a lot of cases that have any ideological valence, because you figure you're going to lose them. 

Dan: Yeah. 

Will: But then if you learn it's an Indian case where Justice Gorsuch is on your side, then you might start to think, “Well, maybe this is one where it's worth--” So, maybe you can only grant cert in Indian cases where this kind of lineup is poised to happen. We just don't see all the cases where he would rule the other way.

Dan: Okay. So, enough about Justice Gorsuch's motivations. Let's really try to dig into legal issues here.

Will: Yeah. Well, as I understand it, the majority and Justice Gorsuch essentially takes this kind of not quite textualist, but maybe originalist approach to the Restoration Act. It's not anti-textualist exactly. But this Restoration Act has these two provisions that if you just looked at them, it may not be clear that what they're doing or they're setting up this rule that if you legalize a game at all, you have to let the tribe legalize it entirely. But the court concludes, once you have the Cabazon Band background, read the way they would, then this is sort of clearly the original framework of the statute. And that's what the statute's trying to do. They include the other readings of the statute, end up making part of it, render one part the other of the statute redundant. And so, the clear intent of Congress is to extend this framework to the Ysleta del Sur Pueblo.

Dan: In terms of the textual argument, and there's a lot of back and forth between majority and the Roberts dissent here, I wasn't totally sure I was persuaded by the majority's reading. So, there's the statute, the Restoration Act, and it has three provisions. We've talked about the first two. One is, if it's prohibited, you can't do it on the reservation. Prohibited by the state, can't do the reservation. Number two, it says, “No state regulatory jurisdiction.” And then three, this is what Part C says gives jurisdiction to federal courts over fences that violate the first part of the statute. And as I take Justice Gorsuch’s argument is that basically, if Section A means anything that is banned by the state is prohibited, any conduct, that would make B irrelevant, the part about no state regulatory jurisdiction. Because C already says there's exclusive jurisdiction in federal courts. So, you don't need B, and what would B be doing there in limiting state control. Does that make sense?

Will: Yes. I agree with you that it's not clear that follows, right?

Dan: Yeah. I mean, because we're basically like, A lays out the rule, B says, “States don't have jurisdiction,” and C says, “Here's where jurisdiction goes.” Right?

Will: Right. If you view the whole statute as essentially about really not addressing the regulate prohibit dichotomy from Cabazon Band, but instead as addressing of the Federal versus State versus Tribe, like trichotomy that classically appears in Indian cases, that really what this is saying is, we're going to pick up the substance of state law for purposes of what's prohibited, but it's now prohibited by Federal Law, like Federal Law is now incorporating Texas prohibitions, and Federal courts are going to enforce them and to be clear, that's not state courts. So, it's making clear that--

Dan: Yeah.

Will: Yeah, to the extent that the tribe does violate some Texas gaming provision, they're not going to have to be inspected by the Texas Gaming Commission. They're going to be answerable to the Federal government. So, it's just sort of-- [crosstalk]

Dan: Yeah. They probably need that just to be super clear, because I think Part C, the provision about exclusive jurisdiction in Federal Courts might not be sufficiently clear that that would be divesting states of all regulatory jurisdiction in this field.

Will: Right. Well, that's especially true, because in the background of this is, for a time period, the Federal government's trust relationship over the tribe is being given to the state of Texas instead, under a regime that used to be more common of having these kinds of state-supervised tribes. So, it might be especially important to make clear that some of these things are going to the Federal government. Part of what’s interesting with this is in a way, I find textually, these are both seem implausible to me and they really are about the background context. Like if you see this section as part of a conversation about Cabazon Band, I see why you'd read it the way the Justice Gorsuch does, but if you see it as part of a conversation about Federal versus State jurisdiction, you read it the way the dissent does. And of course, the statute doesn't really tell you by itself what conversation it's in.

Dan: Yeah. Can you help me with another thing? I read the opinion but didn't get deep into the briefs or anything. The thing I'm also confused about is, you have this Restoration Act 1987, and then after that, you have the Indian Gaming Regulatory Act, which seems like it has a provision that would pretty clearly permit Bingo here. You can offer class II games like Bingo in states that permit such gaming for any purpose by any person, organization, or entity. That's clearly the case in Texas. In the lower courts, as I understand it, there was some discussion about which of these things took precedence. I didn't clearly see the majority answered that question, wouldn't that be like a different route? Because they're just interpreting the Restoration Act but is there some reason why I'm missing why that is not--?

Will: There's a lot of things the majority opinion doesn't address, and there are some places where they it's a little clearer and unclear what it does and doesn't address. I think that's one of two issues that the Fifth Circuit is supposed to sort out on remand, because there's also the question of whether this is Bingo, because there is this dispute of whether a slot machine that plays Bingo inside is really bingo or not. And that agree uses the term 'Bingo'. So, the IGRA argument in part hinges on whether this is Bingo or not. And then, even apart from IGRA, the question of whether Texas law prohibits this thing depends in part on whether it's Bingo. Whether Bingo is the unit of analysis, and this is Bingo, because Texas permits some Bingo, or whether slot machines are the unit of analysis. 

Dan: Yeah. 

Will: And this is really a slot machine. As I read the posture, at least the way Gorsuch is trying to frame the case is that the Fifth Circuit has dealt with this a bunch of times, or there's been a bunch of lower court and Fifth Circuit litigation about this, and all of it has come from this mistaken premise about the Restoration Act. They had read the Restoration Act as just giving Texas a lot more authority than it actually has. And so, the court is removing the mistaken premise and then letting the lower courts figure out where the rest of the cards fall.

Dan: Okay. That makes a little bit more sense. 

Will: I think. Now that said, on remand, I do think because they're not always super clear what they're leaving for remand, I do think on remand, there will be some fights about what's implicitly resolved by majority opinion and what's not, which will itself be a little messy. But basically, I think that's on remand.

Dan: More to say about this, I think it's interesting. It's complicated. It's one of these-- There's a lot going on here. Some of the cases or all the cases we're trying to talk about today have a lot of moving pieces, different jurisdictions involved, a little hard to wrap your head around. Anything else you want to say?

Will: I just want to mention one other overarching issue that does another one of these things that didn't come in, which is the other argument, the other broader issue that came up a lot was whether there is a canon that calls for these statutes to be interpreted in the pro-Indian, pro-tribe way. It engendered this pull back and forth where Justice Kagan suggested maybe they ought to get rid of all canons, or at least all substantive canons. And Justice Barrett and Gorsuch tangled about where the canon might come from. So, the majority opinions isn't a footnote. And reaching this conclusion, we need not rely on the rule - long established by our precedents, dash - that statute to be construed liberally in favor of the Indians, which is interesting because it both dodges the status of the canon, but at least let's throw in a little tiny endorsement of it. [chuckles] We're not saying it's a only canon and it doesn't matter--[crosstalk] 

Dan: That is a weird rule though. There are a lot of rules like that. There's like a veterans' one to interpret things in favor of veterans.

Will: There's one that tax statutes should be interpreted in favor of the government. I looked into this a little bit after argument, and I actually think there were once several different canons in this area that have now started to work. There's the sovereign immunity set of canons, like you shouldn't lightly read statutes to abrogate sovereign immunity or sovereignty. And those are arguably extended to the tribes as they have a form of sovereignty. So, that's one principle. There is a different principle that came up in treaty interpretation that was almost more like the rule that instruments should be construed against the drafter, that under the standard assumption that we just wrote the treaties and made the tribe sign them, that except they're ambiguous, we should construe them in their favor. That's has a different flavor to it. And at some point, they all kind of get collapsed into a general Indian canon, and then they all get ignored for a while. So, this does seem ripe for some kind of reconsideration. This is not the case they're going to do it, they're don’t have to do here, but it was just interesting that they tapped that as they walked out the door.

Dan: All right. We will see what happens whether that canon survives, but it lives to fight another day today. 

Will: Yeah. 

Dan: Indian case to talk about, which is Denezpi v. United States, which is also confirmed as the correct or at least authoritative. This is a double jeopardy case and this is the latest in a series of cases, the court has dealt with involving sometimes it's called the Dual Sovereignty Principle, or Dual Sovereignty Doctrine in double jeopardy law. The double jeopardy clause of the Fifth Amendment says, “No person shall be subject for the same offense to be twice put in jeopardy of life or limb.” And that's been interpreted to apply to all criminal punishment, not just those that involve capital punishment or maiming. But there's a lot of uncertainty about what does it mean to successor prosecutions, which is where these typically come up. Someone's convicted of a crime, and the government wants to prosecute them again later. They're acquitted, the government wants to prosecute them later. That's the classic example involving double jeopardy. In those cases, we have to figure out what counts as the same offense for constitutional purposes. And the Court has said in a series of cases that it's not the same offense, that there's no double jeopardy problem. The two prosecutions proceed from different sovereigns. So, if state one prosecutes you for murder, but state B also has jurisdiction over that murder, maybe you cross state lines while committing the murder-- [crosstalk] 

Will: [crosstalk] -that spot where the four states touch in the four corners.

Dan: Yeah, I've never been there. 

Will: Perfect crime.

Dan: If states can assert jurisdiction that way, even if it's the-- what looks like the same offense in terms of having the same elements, exactly involving the same conduct, involving the same factual scenario, the double jeopardy clause does not prohibit that. The key there is whether it's the same sovereign whether basically the criminal law that's being enforced proceeds from the same source of sovereign authority. States are different sovereigns, they represent different political communities. The United States is a separate sovereign from constituent states and Indian tribes are different sovereigns than states. And then the federal government, they have preexisting sovereignty that actually predates the creation of the United States. But then, other things like a city is not a separate sovereign from the county, the state in which it resides. Puerto Rico is a territory of the United States, and so Puerto Rico does not have sovereignty that's separate from federal sovereignty. Some people don't like this dual sovereignty doctrine, because in terms of the substantive things you might be concerned about with double jeopardy, is it fair for someone to be prosecuted multiple times for the same crime?

There was some interest on the court in reconsidering it. And the court took a case, Gamble v. United States a few years ago, and it looked like it was geared up to reconsider this doctrine that a lot of people didn't like or were troubled by. And then, they said, “Oh, wait, never mind.” So, not totally sure what happened there. But only in that case, actually only two people, Justices Gorsuch and Ginsburg, actually wanted to ditch the dual sovereignty doctrine. So, it seemed like, “Okay, now it's time.” And I think they got there, I think they sort of realized that there were some real wrinkles to doing that, that it would have some pretty bad consequences in a lot of ways.

Will: That's funny, I thought it was that the history-- my memory was that they thought they're given clean, like this doctrine is just totally unfounded historically. And this is like a good Blackstone quote, a few core treatise quotes, and says-- that we can say this is just a manufacturer. And then, also the history turned out to be murky too.

Dan: Yeah, that's fair. But when you think about it, it's a doctrine where there actually are very strong arguments on both sides. From the perspective of a defendant, it is troubling. On the other hand, I think there's some logic to say that if you've engaged in conduct that violates the rules that are enacted by a sovereign state, should the fact that some other state gets in there and maybe botches the prosecution, why should that deprive this other state of its chance to vindicate its own interests? So, I don't know but the court obviously, seems to have agreed with that and agreed with what you said about the history.

Will: Can we just check on one piece of the framing? Tribes get the dual sovereignty doctrine. So, if you're prosecuted by a tribe, then the federal government will prosecute you again for the same elements, but not the same offense, because it's the tribe. Why is Puerto Rico different? Because you think in-- I don't know, man on the street terms, who has more sovereignty and independence in the federal government? The Commonwealth of Puerto Rico, or the Ute Mountain Ute Tribe? Isn't it the Commonwealth of Puerto Rico? 

Dan: Puerto Rico was a really interesting case, and this one was less than a decade ago, where they had a bunch of arguments about Puerto Rico-- Puerto Rico has this really unique status. Basically, the federal government let it have a constitution and has independent elections and all this stuff. People in Puerto Rico really wanted this win, not so much because the actual number of cases that will be implicated by the double jeopardy clause involving dual Puerto Rico, US prosecutions were that many. I think in practical terms, this probably doesn't matter all that much. But I think they wanted the win to vindicate this idea that Puerto Rico has sovereign status, that it is a sovereign.

Will: And the win will be-- Yeah, okay. 

Dan: The win would be saying it's a separate sovereign for double jeopardy purposes, because that would vindicate a more broader principle. The Supreme Court is saying Puerto Rico has its own source of sovereignty. And as I understand it, yes, I mean, in terms of Congress has, basically-- it's fair to say Congress has plenary power, it could wipe out Indian tribes if it wanted to.

Will: It's a little bit contested, but the current doctrine, I think they have plenary power over both Puerto Rico and Indian tribes under the [unintelligible 00:43:16] clause--[crosstalk]

Dan: But I think what the court has said is it's where the sovereignty comes from in the first place. Like the current government of Puerto Rico is just the thing the government set up. Whereas with Indian tribes, they have this preexisting sovereignty and the government, yes, has power over them but it’s recognizing them, but isn't like constituting them. I think it's like a metaphysical.

Will: Well, it's historical in this funny way. It's like tribe started out sovereign, even though we've been clawing away their sovereignty piece by piece in huge, sometimes horrifying ways for, gosh, 200 years, because they started out sovereign, they count. Puerto Rico started out colonized. And then over time, we've been giving it more and more independence and sovereignty. But because it started out not sovereign, it'll never be sovereign until it's independent, I guess. Which is just funny, I guess.

Dan: That's a setup. A long setup. But let's go from the setup now to set up this case. So, we know no problem if it's a tribe and a federal prosecution. Tribe prosecutes you first, convicts you. You get acquitted, either one, the federal government can prosecute you after that for the same stuff, something that looks like an identical offense. There's other questions that we're not really touching on at the moment about like, when are two like different crimes the same offense in terms of their elements, and that's messy. You can go in the other order, no problem. 

The wrinkle here, we have this weird situation where in some instances, crimes that are recognized, established by the tribes are not going to be directly enforced against people by the tribes. They're actually going to be enforced in the special federally created courts, called CFR courts, named for the Code of Federal Regulations, and they're going to be prosecuted by basically federal prosecutors, people that have been selected by-- is it by the Secretary of Indian Affairs?

Will: The Assistant Secretary for the Indian Affairs. 

Dan: Assistant Secretary, okay. Yeah.

Will: Can I just complain? I think CFR courts is a terrible name for these. So, they're also known as the Court of Indian Defenses or Courts of Indian Defenses, which makes sense. CFR courts is weird, because it's a court that's in the CFR, but the CFR is just the Code of Federal Relations--[crosstalk] 

Dan: Yeah, and we don’t call district courts the US Code Courts. 

Will: Yeah. I mean, you do occasionally. So, you know how when you get temporary health insurance, that you could extend your health insurance after you lose your job for a while?


Will: But COBRA just stands for the Consolidated Budget Reconciliation Act, which is I think the past-- it just happens that that year in the Consolidated Budget Reconciliation Act, this was a provision. And now, we call it COBRA even though, it just be weird to say like, "Yeah, I've got Budget Act Insurance."

Dan: I had no idea. 

Will: So, same complaint about the CFR courts. 

Dan: Quick finance tip for people. If you're ever in that situation, you can elect COBRA retroactively if you actually are injured and need your insurance. So don't do it upfront.

Will: Yeah. Just don't pay it unless you get sick, something like that? 

Dan: Yeah. What a [unintelligible 00:46:38].

Will: Isn't that feeloading, Dan? 

Dan: Look, the law, that's the rule. The law sets up, follow the law, Will. Rule of law. If this were a case where you have-- so we have a defendant who is alleged to have committed sexual assault, and who was prosecuted in one of these CFR courts and convicted of tribal violation of law and received a very lenient sentence and then subsequently prosecuted in a traditional federal court proceeding for violation of federal criminal law under the Major Crimes Act, which is a statute that provides a bunch of criminal prohibitions for crimes that occur on Indian Territory, and then received a very, very serious sentence. And so, if the first prosecution had just been in tribal court by tribal prosecutors, no problem as far as double jeopardy is concerned.

Will: And so, the question is if instead, the prosecution is by federal officials and a federal court, but in the name of the Ute Mountain Ute tribe, then does it fall outside the dual sovereignty exception? 

Dan: Yeah. And so, I guess, phrased that way, and that's sort of the way the majority of the court sees the case and here, we mentioned a minute ago that Justice Gorsuch is the pro tribe person. So, we have a majority opinion by Justice Barrett, who's got Roberts, Thomas, Breyer, Alito, and Kavanaugh, and then Justice Gorsuch dissenting with Sotomayor and Kagan. And Justice Gorsuch is taking-- Well, actually, let's think about this. Is Justice Gorsuch taking like a pro-tribe or an anti-tribe position here? It's really confusing.

Will: Yes.

Dan: A little bit of both. He's saying this violates the double jeopardy clause. But part of his reasoning maybe seems to be pro-tribe in the end. 

Will: He's skeptical about this whole court of Indian offenses, but this is the first place. 

Dan: Yes. But let's get to that. 

Will: Yeah.

Dan: Because I think the way I was describing it, when I find it, because you could see it either way. You could see this as vindicating. The majority is going to say no to the double jeopardy problem. You could some way see that as vindicating tribal sovereignty, and you could some way see it as like an affront to tribal sovereignty to say that this other sovereign can act with the tribe's sovereign authority. But what I was going to say before I got derailed by that question about Gorsuch was--

Will: Because your own question to be clear, you derailed yourself. 

Dan: Yeah, no, it was not your fault. 

Will: Okay.

Dan: It's just me free associating, was the way that that you just framed it, and the way that we framed it is sort of the way the majority frames it, which is, look, if you have a law that happens to be enforced by a different sovereign but--if sovereign A's law happens to be enforced by sovereign B, can sovereign be later enforce its own law? Answer sort of seems to be yes. The first prosecution is sovereign A's law, second prosecution is sovereign B's, we're back in dual sovereignty. But that might not be the quite right way to think about it, in the sense that is this first prosecution, this first prosecution in which you have a federal prosecutor of sorts, bringing charges in a federally created court through a provision that incorporates tribal law. Are they actually enforcing tribal law? Or, is something more complicated in that happening?

Will: This is great. I think this goes to the heart of conflict of laws, and also generalizes to other outside of the tribes too. Do you think that the same answer applies outside of the tribal context? For instance, if the federal government passed a statute, suppose the states were okay with it, saying that state crimes can also be enforced by federal prosecutors, and maybe in federal courts to the extent we can find federal jurisdiction hook, could they do this? Because, look, the federal government say, “We're first going to prosecute on federal drug charges, and then if you're acquitted, the same prosecutors will not prosecute you on the state drug charges, in front of the same court- 

Dan: Yeah. 

Will: [crosstalk] -we can find, like diversity of citizenship or whatever we need to make that work. Or, can one state do that? Can Massachusetts say, “All right, we're going to try it for the murder. Well, we lost. All right, we're going to try you for New Hampshire murder, which is we've got a hook for.” It's a normal principle of comedy that states choose not to enforce other sovereign’s criminal laws, like one sovereign doesn't enforce other sovereign criminal laws, but it's usually just a rule of practice, not a--

Dan: Yeah, it seems like there's two ways you can think about it. One is, you could say, “Oh, yeah, the federal government would just be enforcing state law there. The other way to think about it is the federal government is enforcing federal criminal law the content of which incorporates state law. 

Will: Yes.

Dan: Actually, technically, maybe metaphysically that's actually closer to the right way to think about it. What do you think?

Will: Yeah, that's exactly right. Actually, intuitively I'm drawn to the picture where you say, “No, they're not. They're enforcing the other state's law.” But I think there's a long tradition, as you said, so technically, I think this goes back to Justice Story's commentary on the conflict of laws, that in a way, the courts of one sovereign are always enforcing that sovereign’s law, in the technical sense. They're just choosing as a matter of comedy often to have their law model, perfectly replicate another jurisdictions law. But if you were to look deep down at what it is, it is their own law. 

Dan: That’s my intuition. And that's certainly my intuition about what's happening in this case, more than even in your example. I'm not sure. This is basically a big chunk of what Justice Gorsuch is saying, which is just to say, the simple way of seeing this as the federal government enforcing tribal law, that's too simple, in terms of actually look at what's happening here. He says, “Look, these are all federal offenses.” First prosecution was for the violation of federal regulations that assimilate tribal law into federal law. That's a federal criminal prosecution, and I'm not sure he's wrong about that.

Will: I'm not sure he's wrong, but I will push back. I'm not sure he has to be right. The tribe could, if it wanted to, write appoint as a member of the tribal court, these federal bureaucrats, or they could cross deputize them as tribal judges if they wanted to.

Dan: Yes.

Will: And they could do the same for the prosecutor. They could become an honorary member of the tribe and let him prosecute in the tribe's name. So, then the question is, has the tribe done that implicitly or explicitly?

Dan: You mean do that in the CFR courts or do that in their own tribal courts? 

Will: Well, can the tribe make the CFR courts also their own courts? Can the tribe say, “We're cross listing you. You're a federal court, but you're also cross listed as us.”

Dan: That's interesting, and tricky. I still would want to know about who is constituting the court and when does the court have power to do. Because under the regulations, the tribal ordinances have to be approved by the Assistant Secretary of Indian Affairs, don't they? There's some ratification by federal official of whether this should actually be a thing that is enforceable in federal court-- [crosstalk] 

Will: But that's true even-- everything the tribe does, at some sense, that has to be approved by the federal government, that goes back to the sort of tribal sovereignty-- [crosstalk] 

Dan: But doesn't it have to be approved for purposes of whether it can be enforceable in the CFR court? Isn't that the problem?

Will: I think it does. But, again, even so, suppose it's the case that we can cross deputize them, sure, we need the federal government's permission. They need to agree to the cross deputization. But still once we deputize them, can we make the federal officials also tribal officials?

Dan: Maybe, but then maybe it should just count as a prosecution under both sovereigns rather than only one. 

Will: Yeah, that's interesting. Then, you wonder that about the state federal thing too, because in a way, you might say, aren't all state officials also, in a sense, federal officials because they're bound to enforce federal law and obey the federal constitution, and so on?

Dan: That's a late-night dorm room kind of law question, like, “Whoa. Oh, federal officials are state officials, man.” I never thought about it that way. It's a good one.

Will: Yeah. I'm thinking the majority solution sounds simple. Justice Gorsuch is right that it's too simple. But I don't know if Justice Gorsuch is right, or whether it's just metaphysical in some--

Dan: I don't know. Just looking at these regulations, it says, “The Court of Indian offenses has jurisdiction over any action by an Indian that is made a criminal offence under this part.” So, talking about the list of criminal offenses, which includes a list of federal regulatory crimes, violation of an approved tribe coordinates. So, the regulations are saying is like, “You can be prosecuted for violations, and here's the list.” And the list is federal things, including a violation-- The federal thing is a violation of a tribal ordinance. Sorry, that wasn't very clear on what I was saying. But the federal crime of violating tribal ordinances, which is not the same thing as the crime is the violation of tribal ordinances.

Will: Okay, so now, can we talk about the footnotes?

Dan: Sure. Although should we also talk about whether these courts-- these courts don't make any sense, right? Maybe that’s a footnote.

Will: [crosstalk] As I understand it, one of the majority's responses to all this is, yes, Justice Gorsuch is very smart and he has framed the case in a way that's much better for Denezpi than the way we have framed the case. But that is not the way Denezpi framed the case, and so we're not going to do it that way. There were several footnotes that are were some more snarkily and some less snarkily, saying like, “Yeah, this is not how the parties frame it. If you frame it the way the dissent does, it gets really complicated. So, let's stick to our framing because A, it's easier, and B, then we can hopefully go from it.” Is that persuasive or is that--?

Dan: I mean, it's persuasive as far as it goes. I think it's not the right way for the court to proceed in the sense that how the court resolves this issue is likely to preclude further development of the law. And if Justice Gorsuch has really identified the strongest argument here, and even if Denezpi’s lawyers maybe could have framed the case differently, now the concern that having done so in the court saying, “Oh, we're not even going to deal with that. This will just settle the issue, and there won't be a further opportunity to consider that better argument.” And so, it seems like maybe they should just deal with the argument.

Will: Yeah. this is actually a little bit the Court of Two Minds point that we were just talking about from Bert Huang’s article, is like, sometimes the court's like, “Oh, we're just here to consider the arguments presented by the parties. Who are we to inject complicated new issues into the case?” And yet, when they rule on the case, however, it's framed by the parties, everybody will take it to settle all the complicated issues that it didn't get into. 

Dan: Yeah. 

Will: It kind of like that to be clear, one way or the other. Either to say, “Yes, this is totally open for somebody to make the Gorsuch argument about assimilation, and we'll hear at them. Or, we'll have to get into it.”

Dan: Yeah. 

Will: Yeah. Okay. 

Dan: Other thing, do you have more in the footnotes? 

Will: No.

Dan: The other thing that he points out is that-- I'm not sure there's a great response to this. These CFR courts seem to be totally made up. Right?

Will: There is actually a provision in the CFR about them, right? Or do you mean--?

Dan: Yes, but in the sense that there's not statutory authorization for these courts. I mean, these are just a thing that administrative agency was like, “Let's make up these courts and prosecute people for crimes in them.”

Will: That’s awkward.

Dan: Yeah. What do you think about that?

Will: I haven’t totally run into ground. There is something to that. And is this the part of his opinion that Justice Sotomayor and Kagan don't join?

Dan: Yes, I think that's right. What page is this on?

Will: Part Two, the so-called courts, the shaky legal foundation. But I also think a lot of federal Indian law, like propositions that are well established in federal Indian law don't obviously emanate from statutes. And of course, this is the big Indian law case the court still hasn't decided yet, Castro-Huerta, sort of like the post McGirt case about, can states prosecute people for crimes within Indian country? And it involves these principles of exclusive jurisdiction that also don't come from the statutes. Honestly, until Justice Gorsuch got on the scene, I thought there was just a gentleman's agreement that we don't worry about statutes when we're dealing with Indian tribes. It's just this common law trust area. Justice Gorsuch has been much more insistent on tracing things to the treaties and trying to actually figure out the real legal chain of title in these cases, which is good. Maybe he's right. This is another place where that's gone wrong. Maybe, this is exactly why he doesn't have anybody to join this. I don't totally understand where the entire Justice Gorsuch program of Indian law takes us. I'm not against it necessarily.

Dan: Yeah. [crosstalk] If we're going to rethink everything, maybe the whole thing falls apart.

Will: Ah, pieces of it do and pieces don't. Pieces do, pieces don't. As we've talked about, there are lots of cases where the results could be good for tribes. There are some where it could be complicated. Actually, it could be a great really serious research agenda for somebody who's interested in Indian law questions, but also at least capable of doing formalism enough to go through and see where it all goes. It seems fair, but it's maybe dangerous to agree with Justice Gorsuch on that one question unless you're willing to see what happens when you crack open the whole thing.

Dan: Okay, anything more to say about this one? 

Will: No, I don’t think so. 

Dan: Okay. We're running long, but we have time. Let's talk a little bit about Viking River Cruises v. Moriana, which is arbitration case. And this one is an Alito opinion got. He's got Breyer, Sotomayor, Kagan, and Gorsuch, and then Roberts for part and Kavanaugh, and Barrett for slightly less. And then, you have Thomas dissenting with concurrences by Barrett and Sotomayor. 

Will: Yes. It's another one of these weird lineups. At some point, we can figure they're all different. Even though the weirdness line of it and extends to the Barrett concurrence, Justice Barrett and Kavanaugh join only part three of the court's opinion. The Chief Justice joins parts one and three, which then leads to a funny part where Justice Barrett says, “We joined only part three. We would not join parts two and four, because those are unnecessary footnote,” the same is true of part one. And then the Chief Justice can join the concurrence, except for the footnote. [crosstalk] Which is a very funny way to draw up the whole thing out. We could talk in a second what all those parts are, what it means but I did wonder if this is another one example of like, “We've got to get this out the door. And so, we could take more time and have the Chief for his own opinion, or he explains, but it's just faster if we can just shove it in a footnote and have him not join and get this out the door.” 

Dan: Yeah. I was struggling a little bit with this one just to map the ideology on what's going on here but maybe you can help me with it. So, basically, background is long, long line of cases where the court has interpreted the Federal Arbitration Act quite expansively, and in a way that has been, I think, quite hostile to state tort law, to state class action law, and I think in a way that my view is pretty troubling. We have seen some states try to figure out ways around that jurisprudence, because what you see is a lot of parties, employers have these mandatory forced arbitration clauses, and they have market power, and so employees have no choice, but to sign them. And that ends up, not only changing the procedural venue, but also limiting effectively changing substance of law by depriving people of forums and procedural mechanisms, like class action that can vindicate state law, things like protection from employers, like stealing your wages, and stuff like that. California, how's this--? 

Will: [crosstalk] 

Dan: Hmm?

Will: Go ahead. [crosstalk] 

Dan: Were you going to reframe?

Will: I think it's totally right. The standard political lineup is that's arbitration has seen. I do think it's worth at least flagging. There are now some clever lawyers who are doing pro-employee arbitration, trying to actually take their efficient clauses seriously and arbitrate huge amounts--

Dan: The mass arbitration, right? 

Will: Yeah. Suddenly, the companies--

Dan: [crosstalk] -you clerked with when in [unintelligible 01:04:41]. 

Will: Well, they're not technically mass arbitrations. So, what you do is you just, you have to look at them individually, you file one million claims.

Dan: Yeah. That's why they're called mass arbitration. So, there's been mass action versus class action. And mass actions, it's a bunch of individual claims and you just add them up. There is a good new article by Maria Glover about this phenomenon called Mass Arbitration, Stanford Law Review.

Will: Yeah. One reason to favor arbitration is just that courts are terrible. Litigation is expensive, has huge amounts of deadweight loss. So, you might favor arbitration, not because you're trying to screw your workers, but just because courts are very costly. The basic setup is that states are not allowed to try to frustrate the so-called federal policy favoring arbitration. They're not allowed to adopt special rules that arbitration contracts are unenforceable. They have to apply on the neutral rules of contract law. And so then states get very creative about what kinds of formally neutral rules they can come up with that will still vindicate the concerns that they have with the arbitration system.

Dan: Yeah, because you can have general defenses to contract, you just can't say arbitration clauses are disfavored under state law. California has this thing called the California Private Attorneys General Act, PAGA. 

Will: Mm-hmm.

Dan: Which is clever, basically, because what it does is it lets an employee who is aggrieved sue their employer on behalf of themself, but also it deputizes them to bring an action on behalf of other workers, like as if an action that would otherwise have been brought by the state attorney general. It's like a qui tam suit where someone like a private party brings a suit on behalf of the United States to recover money for someone defrauding United States. The idea, I think, is that it avoids this arbitration problem, because the state, in terms of bringing its own enforcement actions, is not bound by arbitration agreements between some other employee and their employer. The state could just do this itself in bringing its own enforcement actions, the state doesn't have the resources to do that every time, some employers screw over their workers, and so this is their workaround and will say, okay, well, employees can now bring these actions in the name of the state, basically, on behalf of other employees.

Will: Right. Or, even on behalf of themselves. 

Dan: Yes.

Will: Straightforward as you might just say, “Well, aha, I'm going to sue about my own rights, but I'm not bound by my own arbitration clause, because when I'm suing about my own rights, I'm actually suing as the private attorney general in charge of myself.” That part is maybe a little too cute for the court, but it is clever. We've talked about this a little bit. This is a potential solution to some of the courts Article Three standing jurisprudence, some of the court's sovereign immunity jurisprudence. In theory, you could use this in federal courts too. We don't really know what would happen if Congress tried to get all PAGA but California is actually willing to do it, and this is our first real collision with it.

Dan: In federal court, you wouldn't have the arbitration problem, because Congress could always just amend the Federal Arbitration Act for bigger problem for states.

Will: Right. In federal court, you would use it to get around the Article Three limits on standing and you would use it to get around state sovereign immunity, if you wanted it, and things like that. So, you use it for a different set of end runs but--

Dan: And so, the problem is you have employee trying to bring one of these PAGA suits, and the employee has agreed in an arbitration clause to arbitrate her own disputes with her employer, the Viking River Cruises. 

Will: Right. 

Dan: To her own, not agreed to resolve, to arbitrate disputes that she has involving other employees under representative actions.

Will: And she couldn't agree to that, right? 

Dan: Yeah, it doesn't make sense.

Will: And it's also the case that matters, this arbitration agreement has basically a severability clause, that says, “To the extent that parts of it are invalid, other parts are still valid. And so. I'm going to have to figure out exactly what can she legally waive under California law? What could she not legally waive?"

Dan: Yeah. Okay. So, I think, the setup, and so what can she wave? You can waive your right to litigate and consent to arbitration. Can the employer just say, “Okay, you have to waive your right to bring these claims entirely”?

Will: So, no. Right? 

Dan: Yeah. The Federal Arbitration Act requires enforcement of agreements to arbitrate. It doesn't require enforcement of agreements to eradicate substantive claims, if that makes sense.

Will: Right. And the California courts have held that you can't waive your substantive PAGA claims.

Dan: Yes. 

Will: Because those are again, not really yours, they're part of the states.

Dan: Okay. And then, this is where I'm likely to get confused. So, you have this California case, Iskanian, right? 

Will: Yeah. 

Dan: Okay. And state courts had said, “Okay, you can't waive these representative claims. That's just not a thing we allow. But also, you can't separate them from your individual claims. And so, we're not going to require arbitration of even the individual claims.” So, the whole thing has to be in court. Is that right? You're staring at me. Normally, you're helping me along here, and you're just staring at me nervously. I feel [crosstalk] to see here.

Will: [crosstalk] -to keep going. 

Dan: Okay.

Will: I think that's right. But I'll just say this part of this opinion very tricky, is that the court goes deep into California law, and like, the Supreme Court's understanding of the California Supreme Court's interpretation of California law, which they also note uses terminology they don't like, because a lot of this involves the representative, who's a representative. And in a way, everybody's representative. These are all qui tam cases. But some of them are representative squared claims where you're qui taming on behalf of somebody else's substantive rights,, some of them are qui taming on behalf of your own substantive rights. So, there are places where the Supreme Court's interpretation of ambiguities in the California Supreme Court's interpretation of California law, which is all somehow a federal question, but yes. 

Fundamentally, as I understand it, the Supreme Court ends up saying California could have a regime in which Ms. Moriana litigates the claims of a bunch of other people under state law as a representative of the state. But because California law currently doesn't let her do that, unless her claims are also part of the mix and because her own claims can be waived, then she can't litigate any--[crosstalk] 

Dan: Her own ability to arbitrate. Her own ability to litigate those claims. [crosstalk] 

Will: Yes, her own-- [crosstalk] Exactly. It's like a part FAA decision, but then a part state law decision.

Dan: Yeah. Let's get there, because part two, as I understand it, part two's opinion is the part that some of the other conservatives don't join. Part two says there's nothing wrong with California having a rule that says, “You can't waive your standing to bring claims on behalf of other people." That's okay. And then, you get to part three, the problem is the California rule, saying those claims are inseparable. So, the right answer is you have to arbitrate the individual claim, but not necessarily the representative claims, because California can say those aren't waivable. Fine. 

And then, I was reading, I was like, “Okay, this sort of makes sense." So, the answer is the state courts should have to figure out what to do with this, so she's going to have to go arbitrate her own individual claim. And then, from me reading it, I had a little bit of a record scratch moment, where the penultimate paragraph of the decision says, “The remaining question is what the lower court should have done with Moriana’s non-individual claims.” So, these are the claims that are not required to be arbitrated, the representative claims on behalf of other folks and says, “Those claims may not be dismissed simply because they're representative. Iskanian’s rule remains valid to that extent.” But then what the court does is it goes on and seems to resolve the question under state law of whether those claims can proceed on their own in state court, and sort of say, “The correct course is to dismiss her remaining claims.” I found this a fairly shocking paragraph, and I sent it to you, and you were like, “Okay, well, maybe, maybe not.”

Will: I love that you're shocked by this, Dan. I love that.

Dan: I thought this was shocking. And then, the weird thing is, you have a concurrence-- The reason I think it's shocking is this is a totally a state law question, and it's not resolved. This court is supposed to be a court of review, not a first view. Totally, the normal thing to do here it'd be, like, “This is a question of state law, we're reversing and remanding. Go figure it out.” And instead, you have this this opinion purporting to resolve this unresolved question of state law, which it doesn't even have jurisdiction to resolve. And then, you have a concurrence by Justice Sotomayor. She joins the opinion in fall, but then she has this sneaky concurrence. She says, “Well, of course, if this Court's understanding of state law is wrong, California courts in an appropriate case will have the last word.” And if the court is right about state law, the California legislature can. So, with that understanding, I joined the court's opinion.

Will: Let me ask, what do you think 'on remand'? So, the Alito says, “Our view is that state law provides no mechanism to separate the two claims. As a result, Moriana lacks statutory standing to maintain her claims, and the correct course is to dismiss her remaining claims.” So, on remand, can the California Court of Appeals say, “Well, thank you, for your opinion about state law, Justice Alito, but on questions of state law, we're actually in charge, not you. And we think we don't share your view of state law. So, we're going to do something different.” Or, are they bound to enforce the Supreme Court's, let's say, misreading of state law?

Dan: It's really hard to know. The actual disposition of the case is reversal with a remand for further proceedings, not inconsistent with his opinion. That's your traditional decretal language that appears in Supreme Court cases reversing state court decisions. Federal court decisions, the language is for the proceedings consistent with his opinion, state court not inconsistent. So, the question is, is it inconsistent with the opinion to reach that result? I think it's debatable, because the opinion has some language like, “Well, as we see it, PAGA provides no mechanism to enable the court.” 

Will: Exactly. The California courts say, “Well, as you saw it, [chuckles] but you saw it wrong.”

Dan: I think that wouldn't be crazy. But the other thing that I was little interested in is Justice Sotomayor’s opinion says, “If this Court's understanding of state law is wrong, California courts in an appropriate case will have the last word.” She doesn't say the California courts in this case will have the last word. So, is she accepting the premise that this is--? 

Will: I think they're all dodging this question. 

Dan: Yeah.

Will: I guess, I think this is another one of these-- Look, I'm glad they're going to get the opinions out by the end of June, but I’ve got to think these are not totally unintentional ambiguities. And Justice Sotomayor could have withheld her vote from part four, and that would have deprived Justice Alito majority for that part. 

Dan: Yeah. 

Will: I’ve got to think she thought about it. 

Dan: Yeah. I would feel differently if she had said, “The California courts on remand can disagree.” She didn't say that.

Will: Right. But maybe she wasn't sure. There's a doctrine called the law of the case doctrine that normally affects the scope of remands. I think there are some questions about how that doctrine applies to the Supreme Court-State Court relationship for exactly the reasons, the inconsistent thing you're just talking about, because the federal courts have a little bit less supervisory power over state courts. So, it could be that this is just a place where actually it's a little unclear and they're in a way leaving it there. Did you also sense in Sotomayor’s concurrence--so I sensed echoes of Whole Woman's Health v. Jackson. So, I don't think we ever talked about this part of litigation. This is, of course, the Texas SBA case, we've talked about repeatedly on the show. 

Dan: Are you talking about the way in which the court there interprets Texas law to decide who has authority to enforce stuff?

Will: Also, two things. The Supreme Court interpreted Texas law in a way to decide who had authority to force stuff, that was not obvious that Justice Thomas thought was a misinterpretation of state law. And then on remand, the Fifth Circuit didn't like the Supreme Court's interpretation. So, they certified the case to the Texas courts, got the Texas courts to say that the Supreme Court's interpretation was wrong, and then dismissed the entire lawsuit, because they've gotten on remand the Texas Supreme Court to undermine the US Supreme Court's interpretation of state law. It's a little bit of a replay of that question here. And it's a little different because it's happening directly to state court rather than from federal court to state court. It was maybe more forgivable for the court to reach the state law question in Whole Woman's Health, because there was no way to resolve this without it. But I've got to think that some of the disputes, I'm sure the Justices have talked about this before, about what should happen on remand there also shaped into the questions of what should happen on remand here. 

And so, Justice Sotomayor might simultaneously think, “Look, if the Fifth Circuit's allowed to pull the rug out from under us in Whole Woman's Health, the California courts should be allowed to do it here. But also, they shouldn't be allowed to do that, and so I don't necessarily want to dig in on whether they should be allowed to do it here.” But this does seem-- Can I be shocked with you? This seems like an irresponsible jurisdictional landmine. I don't think the California courts of appeals will try. I think they'll just go along with it, but it's not clear that's what they're required to do or should do. And the subsequent case, if they tried to reach their own, will just be one of those amazing Fed courts explosions that I almost hope happens just so that we can teach it to our students.

Dan: And we have this other wrinkle, Justice Thomas' very short dissent. Here's to an earlier position he had taken, which is that the Federal Arbitration Act does not require enforcement. It does not apply in state court proceedings, which is interesting. 

Will: Yeah. That’s also always complicated, the politics, these arbitration cases, is in a way, the standard sort of cynical view is the Conservatives are for arbitration and the Liberals are against arbitration. Except that Justice Thomas and I think, Justice Scalia take this view too, sometimes, taken the view of the federalism position that at least in cases arising out of state court, the states can do whatever they want including having discriminatory state laws. Like Justice Thomas' view is that if the state wants to have a state law rule that says arbitration agreements specifically are not enforceable, or arbitration agreements are not enforceable, arbitration agreements we don't like, his view is, that's fine, they can just do whatever they want.

Dan: Yeah. Okay. Well, we'll see what happens on remand. Can I just briefly circle back to one thing that I meant to talk about in Ysleta? You and I talked about briefly, which is that do you think there's any chance this decision flipped in the sense that Chief Justice Roberts was running the majority, and then it went the other way? And the only reason I got to that suspicion, and this is not anywhere near the level of confidence. You do have a Roberts' opinion that has a fairly detailed facts and procedural history section that are what you would write if you're writing majority, including a final paragraph that goes to the procedural posture, it ends with "We granted certiorari," which is normal language. You just don't bother with in a dissent. 

Will: Yeah. 

Dan: Any chance?

Will: I think a chance. I do think that is an unusual way to write a dissent. I think if you look back at Justice Sotomayor’s dissent in Vaello-Madero, which we recently talked about, it has some similar stuff. I think it evens out blah, blah, blah, the government submitted a petition, we granted certiorari. Ihat seems a little unnecessary too. So, I don't know that it's a complete-- and that seems unlikely to be a flip because it's an 8-1 case, it's hard to imagine that there was ever a majority for Justice Sotomayor’s view. 

Dan: Yeah. 

Will: Although that if it's the case, that will be amazing to learn one day. 

Dan: Yeah, that'd be awesome. 

Will: That said, in this case, the unusual lineup, especially with Justice Barrett’s non-obvious vote, makes it even more possible. If there was a flip-

Dan: It's a 5-4. 

Will: -it's Justice Barrett. And if there was a flip, it's that Justice Barrett was originally leaning towards the Chief, and then saw Justice Gorsuch as dissent and said, “Actually, this is persuasive,” or originally thought Justice Gorsuch is going to have to rely on the Indian canon. And then once he showed her that you could reach the result that the Indian canon, she was persuaded. That's not inconceivable. 

Dan: Yeah.

Will: I also think there are sort of not full flips, but part flips. Sometimes, it happens that at conference, the majority is just unclear. And then somebody has to say, “Well, okay, I'm going to try to write something. Let's see if it can get five.” And so, then if you fail to get five, it's not exactly a flip. But you did write a thing you hope to be a majority opinion that's now the dissent.

Dan: Yeah. And then, you just don't bother taking out some of the stuff.

Will: Yeah, especially if you're trying to get them all done by June. One other version of this is I do sometimes wonder about prewriting. Again, just hypothetically, if you're in the Chief’s chambers and you know that the Chief assigns the opinions, and you're a law clerk, you might think you could start drafting an opinion even before conference, pretty confident you're going to get the majority, and pretty confident that if you get the majority, the Chief will assign it to himself. And so, maybe a law clerk started doing that, and then never bothered to take out the stuff they wrote in when they thought it was going to get majority.

The same thing for Justice Sotomayor in Vaello-Madero. It might be that she hoped she'd have a majority. She knew she cared about the case, so she knew she was going to write something no matter what, and she might have started writing it before. 

Dan: Yeah, although she must have. I mean she must have understood that was extremely unlikely that she was going to get a majority. 

Will: Hopeless eternal, then. 

Dan: Yeah. Okay, that was just my thing I wanted to throw out there. 

Will: Yeah. No, it's a very interesting question. And we'll learn a little bit more once the rest of the opinions come out, because if Justice Gorsuch has a second majority opinion in February, then that'll be a clue that he probably wasn't assigned both of them. But there are a few enough decisions these days that it's hard to pin that down. I'll just flag one of them. So, I'm told there used to be a norm among attorneys in the no, back in the days when the court had 200 cases or 300 cases a year, that opinions in June should not be strictly construed [Dan chuckles] because it was just like a little sloppier. 

And then, somebody else even told me it was a specific rule that footnotes and opinions in June [Dan laughs] should not be presumed to have the majority of the court behind them, because especially in the pre-word-processing days, in the end is when you're just adding footnotes and people seeing them. I do wonder if June 2022 is going to have a little bit of that going on. If they're going to get these minions out the door, they're working fast, they've got a lot going on. If we're just going to see a few more of the places where the wires show.

Dan: Yeah. I mean, they've got a marshal investigation to conclude, so they've got a lot of other stuff going on. 

Will: Yeah. 

Dan: Okay.

Will: Once again, I've managed to keep you talking about the cases for long enough that we've got to avoid talking about Ginni Thomas.

Dan: Oh, yeah. We've gotten some flak for not addressing that. And we still plan to eventually, which is does that create a recusal problem for Justice Thomas, or all of her stuff, communications involving the election challenge and so forth. 

Will: Does this prove that I'm acting in bad faith because I'm receiving my marching orders from the Federalist Society meetings and refusing to allow you to talk about the obvious illegitimacy of the court and so on? At some point, we've been promising for over a year. Yeah. 

Dan: Yeah. I mean, maybe that was already proven enough. This is just one more drop wouldn't really make a difference. I don't know. You decide, listeners, you decide.

Will: I have this whole blog post about how the Federal Society is not bad. That's one of the things that's most frequently thrown in my face by random people who are angry at me. I can't believe anybody takes seriously anybody who wrote this. It's one of the things I'm most proud of.

Dan: Well, also, we've been planning on having the Federal Society throwdown episode at some point. And so maybe late summer, early fall before the opinions really pick up, something like that?

Will: Right. To be clear, I have no idea if Ginni Thomas is even a member of the Federalist Society. The Federal Society believes in things the rule of law, it's not obvious to me that she does. So, it'd be an awkward fit. But we can talk about that later too.

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Dan: I think we won't demand that you rate and review because we already did that earlier in the episode. But if you do, that'd be great. Check out our website, dividedargument.com. We have transcripts of all our episodes that come up usually within a couple of days after recording. We have merchandise, store.dividedargument.com. T-shirts, things like that to support the show. And we have a voicemail line, 314-649-3790. We haven't really gotten a lot of voicemails, but if you send us one, we may play it on the show and respond. And send us email pod@dividedargument.com. We're not very good about responding, but we do sometimes incorporate that into the show.

Will: Yes, I want to second everything Dan said. We're getting into peak season here, and so I'm hoping this is a time people can share the show with others if they like it or send us hate mail if you don't like it. But either way, thanks to the Constitutional Law Institute for sponsoring all of our endeavors and stay tuned for more, hopefully in less than a month.

Dan: Yeah, and if there's a delay, it's because we've been forced to arbitrate our disputes.

Will: Justice Thomas will save us.

[Divided Argument theme]


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