Dan and Will discuss the Court's recent run of unanimous cases, paying particular attention to United States v. Cooley; ponder weighty issues like the role of the Hart & Wechsler casebook in defining the field of federal courts; and announce a fun new way for listeners to engage with the show.
Dan and Will discuss the Court's recent run of unanimous cases, paying particular attention to United States v. Cooley; ponder weighty issues like the role of the Hart & Wechsler casebook in defining the field of federal courts; and announce a new way for listeners to engage with the show: our voicemail line, (314) 649-3790.
Welcome to Divided Argument, an unscheduled, unpredictable Supreme Court podcast. I'm Will Baude.
And I'm Dan Epps. So one feature of us being unscheduled is that we did not do an episode last week, because we were hoping to, but then the court didn't give us a lot of interesting material to work with.
I got a theory about this, Dan.
I think somebody at the court must have found out about the podcast, noticed that it released a lot of episodes the first week, and figured maybe they could just freeze us out and we would get bored and stop the whole thing.
I think so. They want to slow us down, and they want to put up a lot of obstacles in our path. And then, corollary, what that means is that they're going to jam us up at the very end of the term with a bunch of stuff that we want to talk about. And then it's a scattershot approach, we won't be able to talk about everything. Because if it was just last Monday, we're now recording this on Tuesday, June 1, and Monday of last week, they didn't give us much good, just some unanimous opinions. And then Thursday, they had an opinion day, we were all excited, and they gave us another unanimous opinion. And then today, Tuesday, we were excited to finally get something interesting, and they give us two more unanimous opinions. So we have an obligation, I think, to record, once in a while to give you some content, and we're going to do our best with what they gave us. But we're going to have to wait for the really exciting opinions.
New opinion Thursday. What do you think? Are they going to be interesting?
I don't want to get my hopes up. They have dashed my hopes now on three consecutive opinion days. And it just seems like they are really lagging on some of the higher profile cases. And, Will, we can talk about why we think that might be in a minute. Before we do that, I wanted to do some housekeeping type matters for the listeners. So first of all, I wanted to tell people, we are going to have written transcripts of our episodes. They're going to be up on our website, dividedargument.com. They won't go up right away because they take a little while to prepare and get edited.
But we will try to get them up within a few days of each episode. So if you're trying to find some discussion we had, and you want to know where it is, they'll have little timestamps on them. Or if you have friends who maybe are not great about listening to podcasts, but might read the content, we're happy to have them participate in that way. So, know that they're there, tell people that they're there. Are you excited about that, Will?
I'm very excited about that. I hear a lot of people hate podcasts.
Yeah, I think that not everyone is willing to just passively consume media like audio, or videos. Some people have longer commutes, some people don't commute. Some people don't listen to podcasts while they're doing housework. And some people just like reading stuff. And for those people, we're going to do our best to accommodate them. And let us know, by the way, if there's other things like that, that could make the show more accessible to you all as listeners. This is something that I think people like, but if there's other things like that we haven't thought of, we are always open to suggestions.
What we need from you in return, though, is keep those ratings and reviews coming on the Apple Podcasts store that really helps people discover the show. One thing I'm noticing, I don't know, if you've gotten this too Will, is I'm hearing from people who are like, "Oh, I just noticed you guys have a podcast." Because not everybody is very online and on Twitter all the time and seeing what's going on. So rate review, share the podcast with your friends. Let's get as many people listening as we can.
Yeah, that's obviously main reward for doing this is listeners. So finding people to listen.
Yeah. And also because it's unscheduled, you have to give us an incentive to record more. And we do... At least I do, I respond to positive feedback. I don't know what motivates you, Will.
Okay. Yeah. So send him the negative feedback, me the positive feedback.
They have been.
I'm sure. I've gotten a little bit too. We can talk more about that a little bit later, as well. But in terms of engagement, you can email us, email@example.com. And we now have a voicemail log. And if you call us and leave us a voice message, we just might play your message on the show, respond to your question. No promises, we may get more than we can possibly respond to. But we do have a line, and the number is 314-649-3790. And I was hoping to get a 202 number for DC Supreme Court. They were all out of those. So I got to St. Louis number.
Are you okay with that, Will?
St Louis is [crosstalk 00:04:54].
Should I've gotten a Chicago number?
It's okay. St. Louis is the DC of Missouri. And I guess that's Jefferson City.
Yeah, maybe we're the... I'm not sure we can even claim to be the New York of Missouri because Kansas City would vie for that title. But St. Louis is the New York of the St. Louis region for sure. And I think it's a wonderful city. I like it a lot, happy to sing its praises. But that's not what you came here for. You came here to hear about the Supreme Court. So-
We're stalling because we don't know what to talk about.
Yeah, we're really dreading having to get into this. But since we last recorded, we have five new opinions. They are all unanimous, right?
Yes. Well, concurrence here and there, but yes.
Yeah. But everybody joins all of them, so a remarkable degree of unanimity. And before we get into the specifics, and as we noted, this is not the most thrilling batch of opinions. But there's some things we could maybe find of interest in there. But what's going on? Why do we get five unanimous opinions? Do you think, are we going to get unanimous opinions the rest of the way, Will?
Well, I do think there's a question about whether this term is going to have the level of political fireworks people sometimes come to expect from the court, for various reasons in that cases on the docket are not as... They're not as many blockbusters as they usually are. And there's been a relatively recent change in personnel, and that takes the court a little bit to feel each other out. And they sometimes are a little bit more agreeable while they're doing that.
I think that's that's important. It seems like when there's a new justice, they maybe take a term before they really jumped into the super, super hot button cases.
Yeah, I think that's that's common. There's more effort to find common ground, maybe more effort to say, "Well, well, we could wait to ventilate those issues." But I do also think, so the court works on this quasi academic schedule, where they rush all their work out at the end of the semester, and then leave for the summer. And I do think that the nature of the deadlines of the court for the next month, they're going to be really trying to push out a bunch of relatively hard and controversial cases.
And so, right before that is a good time to clear other stuff off your deck, stuff that's maybe not going to take you until the end of June to get it done. But just be easier if you don't want to have it hanging over you.
Yeah, and I was complaining about how slow they were being with opinions, and you said to me, "Well, Dan, how often do you turn in your papers five weeks before they're due, rather than waiting until the deadline?"
Which I thought was a good point, although I responded, "Fair, but I don't have four of the brightest young law students in the country just literally ghost writing my work for me. I have to write it myself." So, I don't know. They do seem to procrastinate about a bit.
Everybody procrastinates, I think if you had four clerks working for you, you would take on even more projects.
Yeah. And then what happens with the more controversial decisions is people right dissents, and then I think there's a lot more editing in response to the dissents, and back and forth, and that just ends up causing these things to delay to the last minute. But I do think it would be better for the public, at least, if the controversial decisions were a little bit more spaced out, at least in a term where there's a lot which this may well not end up being...
You joked earlier about, they can distract us by releasing all the controversial decisions at once, so we can't complain about them all. But that's good. But maybe that's good. Maybe it helps lower the temperature a little bit if you have to get out of your system all in a week rather than keeping up a steady drumbeat of...
Yeah, I guess it depends on your underlying view about political scrutiny of the court. Do we want people to really be paying a lot of attention? And do we want the political system to really be paying a lot of attention? Or do we think that these are decisions that are primarily not political decisions and so it's better to have less political scrutiny? And I think that there's a range of views on that question.
Sure. I think it's also just about how should the Supreme Court relate to the new cycle. So, maybe we want lots of scrutiny on the Court, maybe we want everybody to take some time and take the long view. And the first takes, the first hot takes in Supreme Court decisions might be worth a lot less than the cooler takes over the summer as people really get a chance to look at everything.
Yeah, reminds me of when they released the first Obamacare decision and all the news outlets were reporting that they'd struck down the entire Affordable Care Act because people read the first line of the syllabus and immediately started writing their wrap ups without actually reading the whole thing. I think, tip of the hat to Tom Goldstein, SCOTUSblog, they did not make that mistake.
I think some people also they were in the room as the Justices started announcing the opinion and started announcing the opinion in order, ran out of the room partway through, you'd suddenly... Rather than partway through, you'd suddenly find that you really missed an important part of it.
Yeah. Because the early part of the opinion that the Chief Justice wrote is explaining the Commerce Clause analysis where he found a Constitutional problem, but then solved it using the taxing power. And so maybe he would have just skipped to that crucial last part of the opinion with respect to the individual mandate.
Yeah, you leave the movie before the plot twist?
You know, I do think the court sometimes... A couple things to say about that. So I mean, the Court's decisions about how to deal with a public, deal with the media, may not always be pursuing what's in the public interest and may be pursuing what's in the Justice's interest, because from their perspective, they may prefer that there'll be less scrutiny. But they have made some accommodations. So one thing I thought they've done that's interesting is in the COVID, they tell us when they're going to come down with opinions, they don't tell us what ones they're going to be. But they say, "We've got opinions on Thursday." And then rather than just dumping them all as PDFs simultaneously, they space them out by 10 minutes.
And then they also have moved the orders. They used to release the orders at the same time, and they've moved those to half an hour earlier which helps the reporters write up any reactions before they have to move on to opinions. I think those have been good changes.
I do I like the part where they move the orders list so people could actually pay attention to it. keep from getting lost in the shuffle. I find the spacing of the opinions a little weird, because I think it's designed to imitate what it was like when they would read the opinions loud in open court. And so, you wouldn't... You just find out they were in order. They were telling us as fast as they could. They just wanted to get through it.
Yeah. And then you're looking at SCOTUSblog, and it says Justice Ginsburg is still reading her dissent, or whatever.
Exactly. She was always still reading her dissent. And now it's a little weird to build that in artificially, I think. But I guess...
I could live with maybe a five minute delay. It would be overwhelming to get like six at once. You're like, "Oh, gosh. Which one do I even read?" But I can do a Twitter hot take in 180 seconds or so or less. So I don't need the full 10 minutes.
Alright, so one more question about this is, does it bother you they don't tell us what opinions are coming? So some courts would say, "We're prepared to announce the opinions in Cooley and Ming Dai today so you'd know whether to even bother setting up for your hot takes.
It doesn't really bother me because, I guess, I enjoy the suspense. I mean, something about our jobs as law professors is there's very little suspense and excitement. They're great jobs, but the one thing we don't get a lot of is suspense, excitement. I think that's one reason why people get so wrapped up about where their articles are going to place, because that's one of the only things where you're like, "Oh, gosh, I'm waiting for a phone call, I'm waiting for a phone call, really exciting." So I don't mind that. I guess I don't really see why they don't do that. I mean, they certainly could do that. I mean, they at least could do it the day before, or something.
I understand that maybe at the last... Maybe the day before, a couple days before, you realize you need to make some last minute changes and you push it back. But for a Thursday opinion release, they could say, "Wednesday morning, this is what's coming?"
I have two hypotheses. So one is, it might be that they know that they told us which opinions were coming, nobody would go to the opinion announcements three quarters of the time. And that would either just make them sad because they like having an audience, or just one of these areas where the court doesn't like to acknowledge the way in which other people politicize the court. So it may just be part of their polite fiction of all the cases being important.
The other thing I wondered about is it does sometimes happen, I think that they're all set to an outside opinion and then at the last minute, it gets pulled. Because I think the rule is until the until they walk out there and start reading the opinion, it's not too late for Justice Breyer to say, "Wait a minute, I have second thoughts." And I do wonder if they had to tell us 24 hours in advance whether sometimes it'd be that awkward when they said, "All right, ready to announce the Affordable Care Act case. Nope, wait. You will have to wait until Thursday. We're ready [crosstalk 00:14:10]."
Or you could also just say, the deadline for... The decision becomes final internally 24 hours before, right? That's an arbitrary line.
Yeah, you could try to say it. I don't know if you could make the Justices do it.
Yeah. But I also I wonder how often that really happens that the morning of, someone changes the opinion. I don't really remember, from my clerking days. And I was only there a year. So that isn't necessarily representative of how things work overall. But, I mean, generally the whole practice of them delivering opinions from the bench, which they haven't been doing in COVID times, but as you say, they're replicating that. It is a little weird. I remember just having been familiar with the Courts of Appeals, and then seeing the way that works. I find it a little strange, like, why does even do that? I mean, the Courts of Appeals don't do that. They just publish the opinions on their website whenever they're ready. Not necessarily on any fixed schedule.
I assume it's just they do it that way, because they've been doing it that way for a very long time. And I think it's cool, but it's not really required to have them there announcing them orally, particularly given that they don't broadcast those. Those are not publicly available. The audio from the live hand down sessions, I think, doesn't become available for quite some time afterwards. And so, what purpose does that even serve?
Yes, this used to be one of my pet theories, was rather than agreeing to live audio of argument, the court ought to agree a live audio opinion announcements, because I do think that it serves a purpose. I think it is this public information purpose, I think some of Justices would think to themselves. Like there could be a high school class from Iowa is here today visiting the court, and this is what they're going to see. And so you want to take a minute to show whoever's there, like the Court to doing its business.
And it is also funny, because of course, hundreds of years ago, this is how the Court did things. At the founding, the justices would announce their views from the bench, and that was the law. And then the Supreme Court reporter started out as unofficial guy just in the room writing down what the Supreme Court said, so that anybody wasn't there would know. And now we've reached the point where it's the report that's the law and the talking about, it's just the pageantry.
Yeah, and oddly the opinion hand downs, they write little talks that are different from... They don't just read the opinions, they write little summaries, sometimes they include language that isn't in the opinion. And you don't always get the text of those, you certainly don't get them right away. And sometimes people dissent from them, they may be dissent and language that's different from the written opinion. It's weird.
Yeah, no, it is weird. And I agree with all that. I think that some of the press... I think that once upon a time, that's when the press would be in there writing about the opinion, is they'd be in there hearing about the opinion. Now, of course, a huge number of people cover the court virtually and plenty of people say, actually, you can cover the court better if you're sitting there, just waiting for the actual opinion that you can read on your computer, rather than dealing with the pre COVID courts information environment, and then trying to find a place you can Tweet and all that.
Yeah, this is something I'm really curious about is will any of these COVID era innovations remain when the court goes back to something that looks more like normal operations. Which I think we expect them to do this coming term, everybody's vaccinated, they probably will have more in the way of precautions. I wouldn't be surprised if they limit the audience or make all the audience members mask or something like that. Because it has changed things they have the Seriatim questioning, is really changed the way arguments work. And it's also like changed the way the justices behave. Justice Thomas turns out has a bunch of questions. He didn't want to ask them when he had to interrupt people. But now he actually wants to ask them.
Yeah, that may be my favorite thing about this COVID Supreme Court, is Justice Thomas actually asked his questions.
Yeah. What do you make of that? Do you think he just didn't like the other format?
Yeah, that's what he always said. He always said he didn't like interrupting people. He thought the whole scrum was a little disrespectful and disrespectful to the advocate. And if you look at the times he did ask questions, which was not very often, it was almost always once everybody else is out of questions, and it was... The house was getting ready to sit down early, and then Justice Thomas would say, "yeah, well, if we've got time, I would like to ask you about something."
Can we just build in an extra three minutes at the end of all the arguments and just say, like, "Okay, everybody else can do their thing, but now it's the Justice Thomas question time, because he doesn't like questioning the normal way."
Or let him go first, and you guys have a custom that Justice Thomas gets to throw out the first pitch every [crosstalk 00:18:57].
That would work. That would work. That's more pressure. But I guess he's going second right now, because they're going in seniority and he is the Senior Associate Justice, which is hard to believe that he's now been there that long. When I was clerking, he was more in the middle of the Court. Right now he's the Senior Associate Justice.
We're old now, Dan.
Apparently. Well, that will really be the case whenever the Court is staffed entirely of justices who were not there, when we clerked, which presumably will happen eventually, hopefully not anytime soon. But that will be a different day for us. Okay, we've been stalling. We have stalled for quite a while [crosstalk 00:19:44].
You really don't want to talk about Indian law, do you?
I have no objection to it. It's hard to come up with as much as interesting to say about unanimous opinion. So why don't we just summarize what we've got. So you referenced United States v. Cooley, which I think most people would agree is the most interesting of the five unanimous opinions we got, although it's maybe not the most compelling, or most difficult challenge. But I think it is a fair bit more interesting than the others. Do you want to talk about that one?
I think you only think that because you teach criminal procedure, Dan.
You disagree? What do you think is the most interesting?
Well, I got some complaints that we didn't want to talk more about the Cercla case from last week, but...
I don't believe that.
[crosstalk 00:20:29]. You actually want to talk about that case?
No, our audience does, I think.
Okay, fair. But you I bet you agree with me. You agree with me this is the most interesting one? Don't pretend.
I agree with you that United States v. Cooley is the most interesting case. So this goes to the authority of Indian tribes in the United States, as Justice Breyer puts it, the question presented is whether an Indian tribes police officer has authority to detain temporarily and to search a non Indian on a public right of way that runs through an Indian reservation. I don't know, if you ever drive across country, this happens to me when I drive across the country, as in various places you could be on a highway, and then they'll be signs that you're driving through a reservation. And so the question is, as you're doing that, can somebody from the Indian tribe have the authority to stop you and search you the way a state police officer, I guess, theoretically a Federal officer, would?
It belies my lack of familiarity with this area of law that I didn't realize that was in question. I assumed that if you travel through an Indian reservation, and you do something blatantly illegal, they can stop you. Right? That was just my intuition, but I guess, I hadn't really thought about it.
So my federal courts class in law school covered a substantial portion of Federal Indian law.
Which is a good idea. More federal courts classes should do that, or somebody should do that. So there was a foundational case called Oliphant. Foundational being from the 1970s, I think, where the Supreme Court said that, in general, Indian tribes lack any criminal jurisdiction either over non members or white people, depending on how you think about it. But basically, over non members. So the Tribal authority is more like a voluntary organization or a citizenship based where they can police each other, but they lack authority over people who are outside the system.
Yeah, and so, if that had totally prevailed, in this case, that would mean that even if they saw someone committing a violent crime, they wouldn't be able to stop them from committing it?
So yeah, if you took the extreme version, then Tribes really would be powerless, would have no sovereignty. So then the court doesn't extend that doctrine as categorically to civil authority. So they can't criminally prosecute a non member, they have some amount of civil and regulatory authority over the actions of non members. But when they have it, or when they don't, is complicated, governed by a case called Montana v. United States that describes, what are the things that the tribe can still enforce against you?
And something like this, which is a stop, I think the person in question is not ultimately going to be prosecuted in tribal court, they're ultimately prosecuted in federal court. Something like a stop, how does that fit into this spectrum of possible things the tribe can do to you, is the question here.
Yeah. So we're fortunate that you know a little bit about this area of law. But I guess one question I had is, you said that was a foundational case from 1978. Why were these questions not resolved earlier in American history given there had certainly been Indian tribes all along? Is it because the legal relationship between tribes and the federal government was less formalized or was more oppositional for a lot of American history?
So that's a great question. And we're going to quickly expose where my knowledge of Indian law runs out. I do know the Oliphant question is one on which there was some practice and precedent going way back. And in Oliphant, the court has to deal with old federal district court decisions from many decades earlier. There are these just generally different waves of the reality on law of federal Indian law. So it's in the 1970s that the modern era of federal Indian law has really begun just as a regime of statutes and recognition and to some extent, apology for various other regimes we've had in the past and an attempt to allow the tribes to exist and exercise some regulatory authority and then figure out how to fit them within the federalist framework. So I think these issues did arise before that, but the current legal framework is not that old.
Okay. So that's a good setup. So we have this case, and in this case, we have defendant, Mr. Cooley, who was stopped after he was parked on the side of the road and he had a glass pipe, it had some methamphetamine, he had two semi automatic rifles in his car. So it was very plainly... after the tribal officer came over and checked him out, very plainly up to some unsavory things. But then the question is, even if you witness what looks to be clear lawbreaking, as a tribal officer, do you have any authority to do anything about it? Answer. What's the answer?
Okay. But it's going to be a limited answer, right? So, certainly the tribe does not have authority to then arrest, charge, prosecute convict, a non tribe member in their own tribal courts. What do they get to do?
So what do the have the authority to do? They have the authority, according to the Court, according to the prior Montana case, to protect the quote on quote, health or welfare of the tribe. And in particular, the Court says that means the tribal police officer has the authority to search and detain for a reasonable time, any person he or she believes may commit or has committed a crime. I take it that's basically probable cause, a person, he or she believes, you have the ability to search entertain for reasonable time.
Yeah. So it says believes. I guess that's probable cause. Or I wonder whether that's some lower reasonable belief standard.
Maybe it's reasonable suspicion, I guess that [crosstalk 00:26:37] of an issue.
Yeah. And then at that point you detain the person until they can be picked up by state or federal, or local, non tribal authorities?
Right. And this is one of the points the court deals with in this case. So because you have this weirdness that the criminal jurisdiction of the tribe depends on the status of the defendant, you might not know at the time you're first pulling over a car. Or first even looking at some guy who has a bunch of guns in his car, whether he's a member of the tribe or not, or what to do. So I take it, one of the things you can do during that reasonable time is figure out what the next step is, figure out, ask the person, look at the records whether they're part of the tribe or somewhere else you can figure out where to go next.
Yeah, so one thing that the Court notes is that it would be problematic for the power to even stop to turn on the status of the person stopped, because you as you know, you wouldn't know that at the moment you're making that decision. And so that would be complicated. So to me, at least, this seems fairly sensible, and it certainly seems if you take that exception from the Montana case, which is about protecting health, or welfare of the tribe, some limited power to stop people who are doing something, say dangerous, something criminal, many, which are things are quite dangerous, seems important.
Yeah, in some ways it's straightforward. I think, if you just were looking at this case by itself, it probably would seem like this is an obvious answer. They're not going to have a regime where the tribal police can't do this. It is worth putting this in the context a little bit of the courts broader federal Indian law jurisprudence, which I guess it's fair to say just, in general, if the question is, does the tribe have the authority to do X? It's a very good that the Roberts Court's answer has been no.
Yeah. And so there was a case, just last term, McGirt, that vindicated the rights of Indian tribes, and more about the content of that in a second, which, as I recall, was one of the first victories for tribes, and in quite some time. I think there was one other maybe three or four years before that, but there was a while where there was a long streak of losses for tribal interests. And we've now had a few wins for tribes. Anything, [crosstalk 00:29:12] make it that?
Well, I guess, I just add the legal framework. Two the things with this that puzzle me, maybe a part of this is, I think the Court has been skeptical about giving tribes a lot of authority over non members, in part because tribes are not regulated by the constitution at all. So tribal criminal proceedings don't have any constitutional obligation to obey the Bill of Rights. There's a statute that requires them to obey some of the rights in the Bill of Rights, but not all of them, and there's limited remedies and so on.
So, there is a foreignness, obviously, the deep history to the nature of the governmental authority that I think makes the Court nervous. At the same time, all these limits the Court comes up with, like this Montana case, this Oliphant decision, they're all not really based on any ordinary legal text either. There's not like a federal statute or a federal constitutional provision that clearly gives you rights as a non-member against Indian tribes. It's all an area of almost federal common law, which is a weird space for the court.
That's interesting. And just as a matter of law, putting things in the right conceptual boxes, is it really federal common law? It's not constitutional principles somehow?
Well, I think it's actually just genuinely unclear what it is. In the Oliphant situation, this came up a little bit, because Congress then stepped in and passed a statute to respond to a subsequent case. So it's not too important to know the details are, but giving tribes some authority to prosecute members of other tribes, not the same tribe, and the court concluded that was okay. But they split it in lots of different ways and really confused themselves just about the basic question of what's going on here. But the court says in Cooley, and I said before, almost all these doctrines are subject to the plenary authority of Congress. So presumably, it's not constitutional on the normal sense.
Okay. So it could be maybe you don't believe in this, but maybe it's in this weird category of constitutional common law identified by Henry Monahan, or maybe it's just ordinary federal common law, the interstices of federal statutory frameworks. But it's something and it's something weird. They're not just reading a text.
Yeah. I mean, I don't believe in federal common law either. So-
Of any kind.
Yeah, it's just common law. There's no federal common law.
Just the general law, basically.
I find that view... there are things I quite like about that view, although it's really hard to understand how that would work. Here, where there's not a general law of federal Indian tribe relations, right? I mean, that makes a lot more sense to me when you're doing contract law, then-
I agree. I think if you were going to do it, and this is a paper I'll probably never write one day, you have to start with general international law, and then adapt [crosstalk 00:32:05].
Like foreign relations kind of law. Like [crosstalk 00:32:07].
Yeah, and this is what the Court does in state cases, is it starts with international law to resolve who owns Ellis Island, or who owns the thalweg in some river, and then recognizes it can't exactly apply in international law, the states are not foreign countries. So you have to do some analogies and modifications. I think you'd have to do something similar to tribes, because they're partly foreign.
Yeah. Or it would be hard to even figure out the right analogies, though, because their legal status vis-a-vis the set of federal government seems to me quite sui generis. It's hard to know what I would analogize that to either domestically or internationally. I'm sure that there are some analogies out there.
Yes. And that's exactly where we are so that we have this sui generis area of federal Indian law with some statutes and some judicial decisions whose relationship with the statutes is unclear. And so it's maybe less surprisingly than have the court in this very unusual posture.
Yeah. Okay. And this was a win for tribal interests, but how much that means is unclear. One thing I noted was your colleague, and I think she's your colleague for just a few more weeks, if that's right, Elizabeth Reese, on her way to Stanford Law, had a short thread about this decision, and says, "Note, this is the first time the court has ever found this particular Montana exception to the presumption against tribal sovereignty, satisfied," but basically saying that... Her point was that this is unlikely to be the beginning of a lot of cases where they find that exception satisfied. This is the outer boundaries.
Right. Yes. So she says the tribes, of course, are also going to say they need to regulate hunting, cultural property, water, various things to ensure basic services, and the courts may well be more skeptical there. So maybe this is more of a criminal law decision in some ways than a tribal sovereignty decision in terms of where it fits into the broader pattern.
Yeah. And with respect to that, one thing that's notable is we have a one paragraph concurrence from Justice Alito, which is the kind of thing that he writes when you can tell he's gritting his teeth about a result. Sometimes he writes these and he's like, "Well, I'm not totally comfortable with what we're doing here," maybe because it pits two of his competing allegiances against each other.
But I am going to join on the assumption that this opinion only applies to cases decided on June 1, 2021, basically just really limiting it to its facts. And here, he does that. He basically says, "I join on the understanding that it holds no more than the following, 'On a public right of way that traverses an Indian reservation is primarily patrolled by tribal police, a tribal police officer has the authority to, A, stop a non Indian motorist if the officer has reasonable suspicion that the motorist may violate or has violated federal or state law; B, conducted search to the extent necessary to protect himself or others; and C, if the tribal officer has probable cause, detained the motorist for the period of time reasonably necessary for a non tribal officer to arrive on the scene.'" So that is very specific, indicates he thinks this is a very narrow holding.
I agree. I think it's not just about narrowness. There are various places which he's also being more precise than some of what we see in the majority opinion. So the majority opinion put together, stopping, detaining, searching as reasonable. And we just talked about it, we couldn't even figure out if that was a probable cause standard or reasonable suspicion standard. And as I understand it, Justice Alito is being more specific, he's breaking apart, stop, search and detention. And he has specific standards for each one. The stop has to have reasonable suspicion. The search has to be protective, necessary to protect. And detention has to have probable cause. And there are a few more caveats in there, too, like, he's only okay with the stop for a violation of federal or state law. I take it if you [crosstalk 00:36:12].
Not for tribal law.
Right, not for a tribal ordinance of some kind. That also just may show some of his maybe more comfort with a bunch of this criminal procedure doctrine that for a lot of the Justices, they say, "Yeah, stop and detain them reasonably, according to all that crim pro stuff that we occasionally have to bone up on when we get a hard case. And Justice Alito is more attuned to the exact doctrine or box that each part of the seizure and search are going to go in.
Yeah. And some of the Twitter cynics were saying, "Well, he really likes giving law enforcement power, but also is not super enthusiastic about giving tribes power, and this is how he ended up there." We're not necessarily going to endorse quite so much legal realism here. That doesn't seem to be our brand at the moment. But one thing that it maybe reminded me of a little bit, do you remember his... Different there because they are he was the deciding vote. And so the fact that he wrote a separate opinion, where he didn't actually join the majority made a bigger difference. But remember his opinion in Yates v. United States? This is the fish case.
Yeah, I remember the fish case.
The fish case where the court narrowly held that this destruction of evidence statute did not apply to throwing undersized fish overboard. And there is a four justice plurality, and then Justice Alito goes along, but writes a separate opinion just for himself that doesn't join... That he's a little bit narrower than the majority and basically limits the case to its precise facts.
Yes, I remember that. I also remember he has a weird question thing about alligators in that opinion, right?
Yes, that Justice Kagan, in my memory, admirably responds to. Although, my memory is that it was crocodiles and alligators, but I don't have it in front of me.
Okay, [crosstalk 00:38:04].
Crocodile is a better word, I think.
So I'll just say, you mentioned the legal realism point. I think this actually... There is one other serious point here, which is that, obviously, we like to categorize a lot whether justices are voting the conservative or liberal way in various cases. And I think the gold standard is the database maintained but one of your colleagues, Lee Epstein, that tries to catalog all these things. And one of the hard things about doing that is the usual assumption is something like, well, a vote for the criminal defendant is a liberal vote and vote for the prosecution is a conservative vote, and to vote for the Indian tribe as a liberal vote, and to vote against the Indian tribe as a conservative vote.
And then sometimes you get a case and you're like, "Well, do I code this as a unanimously liberal case because the Indian tribe won, or unanimously conservative case, because the criminal defendant won? And that turns out to be... And that happens a lot, is United States v. Lopez, the gun-free school zones in that case, actually a five, four liberal victory because the criminal defendant won? Or is it a five, four conservative victory because federalism won? These cases are a reminder that... I don't know, it's a little constructed which category put it in.
Yeah, and I think that is a limitation of those kinds of analyses, though, I have to tread carefully because now my university chancellor, Andrew Martin, is one of the creators of what are called the Martin-Quinn scores that basically look at those categorizations and then are able to rank justices according to how liberal or conservative they are. I think it's quite useful and interesting, but it is an example of sometimes in social science fields, economics, political science, you do have to simplify a little bit.
And some of that simplification does end up glossing over some things that we as lawyers think are relevant. One other thing to know, just to circle back to the McGirt decision, and there is one that I think you would probably categorize as a quote, liberal unquote, decision because it was a ruling in favor of a criminal defendant and in favor of tribal interests. And it was, I would say, a somewhat shocking result where the court held quite narrowly, that a good chunk of Oklahoma is for purposes of federal law, an Indian reservation where there's no state jurisdiction over tribe members for criminal law violations.
And we have an opinion by Justice Gorsuch, who seems to really be attuned to the interests and the law of Indian tribes, and maybe in part because of his background from the Southwest. He's from Colorado, where you would have... I think a lot of people would have a lot of exposure to tribes, to reservations and to tribe members.
Yeah, the Tenth Circuit, I clerked on the Tenth Circuit, actually, when Justice Gorsuch was Judge Gorsuch. There is quite a supply of tribal law cases or of Indian law cases. So it's an area of law he's probably more familiar with from his time there just thinking about Indian country and how the different things work together. It does also seem to appeal... I mean, there's this little guy streak in Justice Gorsuch's opinion, sometimes defendants sometimes immigrants, and I think the claims of Indian tribes or particular tribal members who think, "People are ignoring my legal rights because they're inconvenient" is a claim that Justice Gorsuch is often more ready to listen to than a lot of people.
Yeah, but as relevant here in terms of what the Court has done in the last couple of weeks, one other thing that happened since last we recorded is granted an application to stay the mandate in an Oklahoma case that raises issues similar to that McGirt case. And basically, people are looking at that, and saying because the court granted the stay and they did so over the noted dissents of Justices Breyer, Sotomayor and Kagan, they're wondering, "Is the Court now walking away from the consequences and the implications of its decision in McGirt?" You understand exactly what was happening there? Because it's a little unclear to me.
So I don't understand exactly, but I understand approximately. So as I understand it, the State of Oklahoma is now struggling to implement the McGirt ruling, which might have a huge effect on the past criminal jurisdiction of Oklahoma. But the State of Oklahoma has a couple arguments that might really blunt the impact of McGirt. One of them is about procedural bars, one of the questions they presented. So it relates to our Edwards v. Illinois conversation, how its state procedural bars. But one of the questions is basically, how much can states use various anti retro activity, waiver, et cetera doctrines to keep all the people in jail even though their rights were violated like McGirt? To what extent can we avoid making this whole thing retroactive? Because-
But this should be a situation where I think you're saying the state courts never had jurisdiction, right?
Yes. Whether it's exactly in what sense its jurisdictional? Yes.
Yeah. So it gets into exactly some of the questions that Justice Gorsuch reserved in his opinion, but still, there's a set of habeas procedural questions. The other question that they've asked the court to review is whether states have jurisdiction concurrent with the federal government over non Indians who commit crimes against Indians on Indian country. So this would be contrary to the conventional wisdom that once it's in Indian Territory and federal jurisdiction, there's no state jurisdiction. It seems like they're also reserving the question of whether maybe the states should have some authority.
That could be big. That could be a big deal. And I will say, I do remember when I followed the briefing in McGirt and the previous case of the same issue that got swept in with McGirt. There were a bunch of complicated arguments that Oklahoma might have jurisdiction to prosecute people even if this was Indian country, some of which stemmed from like Oklahoma specific statutes relating to the particular way which Oklahoma was admitted to the union, and apparently was once the position of the solicitor general's office back in the 1980s before they abandoned it. So there may be some actually meaty and Byzantine arguments here that would potentially give the state more criminal restriction than people realized.
And the reason that they wouldn't have just resolved that upfront in McGirt is just because that hadn't been dealt with in the lower courts?
No. So it was one of the arguments that got injected into the case. I don't know if you remember this, but at some point in the argument, I think, again, it was the pre McGirt case, the court asked for supplemental briefing on various other theories that might allow them to get out of the case. And this was one of the other theories that the SG's office came up with. In the end, the court didn't go with it. Now, maybe that's because they didn't buy it. Maybe it's because they just weren't sure, and it wasn't quite the main thrust of the case.
Of course, it now has been a one justice change of personnel. So Justice Ginsburg was in the majority in McGirt and she's not there anymore. So that could change things. And I think this is another area where the rule that states have no jurisdiction at all to prosecute crimes that take place on Indian reservations is not, as far as I know, contained in a statute or in... It's not directly required by statute or by the Constitution. It's another one of these common law, constitutional whatevers, which could make it up for reconsideration.
But just so I'm clear, we don't think that McGirt necessarily resolved this question about concurrent state jurisdiction by virtue of reversing in that case, or implicitly resolved it, or-
I think it did assume it. I actually think this part of the argument is challenging some long standing assumptions of how all this works. I don't know. At this point, it's a little semantic to ask whether McGirt resolved it and they're asking for a slight change in McGirt, or whether this is a slightly collateral attack. I think the point is just that... Well, I don't think the Court is going to overrule McGirt, even if Justice Barrett wouldn't have signed on to it in the first place. This could be a big Indian law decision.
Yeah. But notably, Justice Gorsuch did not note his dissent from this grant of the stay in the Bossee case. Three of the justices did who were in the five to four majority and McGirt. One more of them, as you noted, Justice Ginsburg is not on the court anymore. But then that key vote, Justice Gorsuch doesn't sign on... Either signs on to granting the stay, or at least did not note his dissent. Do you make anything of that?
I think that is a sign that this is it's not obvious whether this is a full frontal assault on the court's decision to McGirt. So Justice Gorsuch could have dissented, but not, decided to stay, so it could be, he'll say, he's this big believer in these state procedural bars, or at least in letting states do whatever they want to. It could be even other jurisdictional arguments. So I think it's just too soon to tell whether this is going to be big or not.
Okay. Well, that's probably as much as we want to say about that case, unless you have any other thoughts, Will.
I have one last thing to note in the spirit of things that weren't noted. The whole Cooley decision where we started comes with this general thing that happens all the time of the tribal officer enforcing law that's not tribal law, which is a common scenario in criminal law. And turns out to have lots of its own legal ambiguities and controversies about when officers can do this and what happens to them and Orin Kerr, a friend of the show, I think has a great article in the Harvard Law Review on this topic that the court completely ignored the topic, completely ignore the problem, therefore ignored the article. But it is lurking in the background for people who are spotted the complexities on the surface.
Yeah, I like that article a lot. I think I was actually... That article by [Oren 00:48:27] really interesting, I'm a fan of it. And it would be great for the court to have dug in, given Orin a site, but I think he's got plenty of Supreme Court sites already. So not going to shed too many tears for that. But we recommend that article to you if you're interested in some of those issues that the court didn't dig into.
So anything else the court did that is worth talking about, Dan?
Well, we should probably just acknowledge the existence of the other decisions, even though we're not going to talk about them extensively. So today, we also got a decision in an immigration case called Garland v. Ming Dai, one of the first Supreme Court cases with Garland in the name because immigration cases involve the Attorney General as a party. So previously, this would have been Barr v. Ming Dai and their court reversed the Ninth Circuit. By the way, they also reversed the Ninth Circuit in Cooley, and they reversed the Ninth Circuit in one of the other decisions from last week. So the Ninth Circuit is not having a great run, as it sometimes does.
And in that case, they basically rejected a rule the Ninth Circuit had seemingly made up, which was that, courts basically have to... In the absence of a explicit adverse credibility determination by the Board of Immigration Appeals, courts just have to take the aliens testimony, some key fact as true. And the court said that's a made up rule. That's not that's not a thing. So there a unanimous decision in favor of the government in an immigration case.
The one thing I liked about the opinion is the way it so noted that this is a long standing Ninth Circuit precedent. It's been there for over 20 years. The court said, "For many years and over many dissents, the Ninth Circuit has proceeded on the view that..." So it's a funny reminder, when you work on the Court of Appeals, you can get used to like, "Well, this is the way we've always done things." But nothing stops the Supreme Court from coming in 20 years later and saying, "Oh, by the way."
One other thing that was interesting was on the very first paragraph of the opinion, Justice Gorsuch notes that at least 12 members of the Ninth Circuit have objected to this judge made rule. So apparently, the number of judges on a circuit court that object to precedent is now relevant and worth mentioning.
The Ninth Circuit has a ton of judges and those judges often write these dissents from denial over hearing on bond has been designed to catch the Supreme Court's attention as a possible case to reverse. And it is actually an interesting question of, how many of those is really significant? I think there have been some where you see 15 judges dissented. I didn't even know you guys had enough judges for 15 to be a dissent rather than a majority. Is four not even that interesting anymore?
12 is a good number. I mean, 12 is a lot. So it does suggest some problem with [crosstalk 00:51:22]. Yeah, it raises concerns. So last week, we had San Antonio v. Hotels.com, which is, I think, friend of the show, Steve Sacks, probably loves this decision. He's a big fan of federal rules. This is about Federal Rules of Appellate Procedure 39, and it's basically about who gets to decide, who has to pay costs after a successful appeal. And costs are just like, you have to pay fees for a bond and like printing fees and stuff like that. And it turns out that district courts do not have power to alter how the court of appeals has allocated costs that were relevant to the appeal.
And usually, this is a pretty trivial some of money, often not even worth litigating over, but for various reasons because the way appellate bonds interest worked. In this case, it was $2.3 million. So okay, worth the court's time.
Yeah. So you can see why it matters in one case, and I think with the Exxon case, as the court notes that the bond fee was $60 million, so it doesn't matter sometimes. My question is, with a decision like this, why don't they... I mean, the court gets to make these rules. It just seems like, why not just say, "Okay, there's some confusion about this rule. Let's just kick this to the Rules Committee, and they can fix it, and then we don't have to go through the trouble of litigating this." As opposed to a statutory question where Congress may or may not resolve the question, the Court can just amend these rules itself.
Well, I take it, here's part of the problem is that they thought the courts were ignoring the rules. So I don't know that it's... Do you think the court is ignoring the rule or claiming discretion to depart from the rule? It's not super effective to reenact the rule.
Well, perhaps although they're granting, because there's some disagreement. There were legal arguments about whether how exactly the rule works, and you add a new provision that says, "And by the way, here's what we mean." But it's not like they have a docket that is overflowing with cases. The number of cases they grant has been going down, so maybe we shouldn't encourage them to take even fewer cases.
Yeah, I'm fine with this one.
Okay. What else? Last week, we also got Guam v. United States, which is a opinion about CERCLA, which is the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, which regular people probably only know about because they know that sometimes if you own some land, you can get really, really in trouble for being on the hook for environmental remediation damage that... Responsibilities that attach to that land. Not much to say about that one. In a week or so of perhaps less than thrilling, unanimous decisions, that one, I think is at the bottom of the list for me.
And then we also have United States v. Palomar-Santiago, which I think is slightly more interesting, because it relates to some questions about retroactivity that we talked about two episodes ago in Edwards v. Vannoy. And it's basically a situation where someone is removed from the country, an alien is removed from the country, and then they're later charged with illegal reentry. They come back in after being removed, which is a crime. Just being here illegally is not a crime, but reentering after you've been removed is a crime. But then it turns out that the original removal order was illegal. It decided under some precedent that was subsequently overturned or something. And then do you get to do that? Do you get to challenge that later on? Answer, no. You don't get [crosstalk 00:54:52].
Answer, no. Although, footnote... So I think, mostly, there's not a lot to say about this case which deals with a lot of statutory argument that the court thought it was something of a reach. But it is worth pausing over a constitutional question that the court acknowledges in a footnote and then moves on from. So they point out, I think, rightly, that there is something a little funny about having a federal crime, part of the elements of which are based on the actions of federal administrative proceedings or federal bureaucrats at a previous point in time. And depending on how you slice and dice those things, there could be separation of powers and due process problems.
The world in which a lot of the action is happening outside of your criminal case where you don't have a lawyer and the normal criminal procedure, and then we're porting it over to the criminal case. There's a fed courts chestnut case called Yakus that some people who teach Hart and Wechsler sometimes still spend time on that just raises some of these puzzles. There may be [crosstalk 00:55:48].
You say, "Some people who teach Hart and Wechsler." Do you not teach Hart and Wechsler?
I've always taught Hart and Wechsler, but I'm actually strongly considering abandoning it this year.
Okay, this is controversial. So for those who don't know, Hart and Wechsler is the very famous federal courts casebook. Is it fair to say it is the casebook that defined and created the field of federal courts as a distinct field of scholarly inquiry?
That is exactly what it did.
And then people who teach federal courts have this choice of whether to use it. It's a book that's now edited by various leading federal court scholars and friends of the show. Fallon, Jack Goldsmith, I think, Dean John Manning is on the book.
Yeah, if I'm remembering correctly. It's a hard book, right? It asks some really, really hard questions and focuses on, I think the most difficult questions of federal courts law. And there are some books that are maybe a little bit more accessible, a little bit more dumbed down. And so teachers have this choice. But it's hard to not use it because it really is the book. [crosstalk 00:56:52]. Now, you're thinking about not using it.
It's a book that's part casebook. It's part treatise, it really is. It's one of the books that people who practice in the area of federal courts keep on their shelf and still go back and look at when you have a hard federal courts problem. And at this point, it's part, also primary source of historical artifacts, like the court will itself rely on Hart and Wechsler. And you can have these funny cycles where Hart and Wechsler adopts a reading of a supreme Court case called United States v. Klein, and the Supreme Court adopts the Hart and Wechsler interpretation of the Supreme Court's decisions.
So this point, it's an amazing document. I don't want to be too hard in the book. It's an amazing book, but I will just... Okay, I'll confess this. So I love the first edition of Hart and Wechsler published in 1953, which is very hard to get your hands on, but as you can, you should grab it.
How much does that go for on eBay these days?
It's mostly not available on eBay, but occasionally, you can find a copy for 10 bucks. But mostly you can't find any copies. [crosstalk 00:57:46].
The price is going to go up now that we're telling people about it.
Let it create a run. If you have a copy of Hart and Wechsler and you want to sell it to me for an unreasonable amount money, call the show, I'm potentially open to it. But it created the field. So just took a bunch of the hardest cases where people didn't know the answers and often didn't realize the stakes of the cases, and arranged those to create the field. Now, the field exists in so many different doctrinal silos. So it's just a lot harder to get clear of it and to really think about where the really hard problems are now, especially in light of all the ways in which the Supreme Court's methodology has changed in the last 20 to 30 years. So I'm experimenting with going bookless and just start taking the [crosstalk 00:58:27].
You could write your own book. You've got a conn law book, maybe it's time for you to do a feds court book.
That's a longer conversation. [crosstalk 00:58:32]. I might start by just taking the 40 or 50 most important Supreme Court cases and just teaching them and see where we go.
Okay. Well, I'd be curious to see whether your students would appreciate being saved the money or would find that even more perplexing.
So every year, I get a lot of complaints in my evaluations about the book. And every year I tell them at the beginning of class, "You're going to hate the book, I know you hate the book. Sorry, I'm not going to change the book, feel free to complain about it if you want." So this year, maybe I'll say, "All right, the good news is we're not using the book. The bad news is you're going to miss the book."
And some books are hard, but some fields are just really hard. I mean, federal courts is really hard. And you can have a book that dumbs it down more and streamlines and simplifies, I think, but the hard questions are still going to be there. You can't erase them.
Yeah. And it also depends on where you are in law school. So the first year we do simplify on purpose, right? We're still trying to learn things. So part of pedagogy is distilling things down into these like simple questions we can start getting our feet under us. But fed courts for people who are a little on the litigation, rather the transactional side is the capstone course of law school. So you're about to go out and actually practice fed courts, and it's going to be hard. And I figure, we're not doing people any favors by hiding the hardness from them.
Yeah. I agree with that, but it's probably a very, UChicago approach. Very serious, very demanding, very unforgiving. I love it. [crosstalk 00:59:58]. I'm not sure how your students feel about it but-
You forgot fun.
Okay, yeah, you do it cheerfully. I don't know if everybody does, but you at least have a smile on your face. So lots more we could talk about. Will, I do love how you were able to find this fascinating fed courts angle and pretty much every decision we talk about, even ones that I am dismissing as unimportant. And so the 12 listeners who are really interested in abstruse fed courts issues will appreciate that as well.
That's why I'm doing this podcast.
Yeah, that's our brand. But I think that's all we have to say about the opinions for the last couple weeks. We wish that there was more that we wanted to talk about, but we don't want to bore you. We do want to keep giving you some content, but we're very much hoping that some of the coming opinions are going to be a little bit more spicy.
Thanks very much for listening. Thanks for bearing with us as we tried to make sense of this week or so have of unanimous, not particularly thrilling opinions, but we feel like we did our best. Thanks very much to Libby Seguin of the University of Chicago Constitutional Law Institute, who has been helping us a lot, and thanks to the institute in general. Thanks also to my research assistant, Rachel DiSibio who has helped us edit the transcripts for the episodes that are now available on our website. So keep an eye on those.
And to repeat what Dan said earlier, please remember to rate or review the show on iTunes or wherever you listen to this. That helps us find listeners, helps listeners find the show, which is our ultimate mission here.
Well, I think my ultimate mission is praise and positive feedback, but it's relevant to that mission.