The Uncertain Future of the Indian Child Welfare Act | Crooked Media
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November 14, 2022
Strict Scrutiny
The Uncertain Future of the Indian Child Welfare Act

In This Episode

Rebecca Nagle, host of Crooked Media’s This Land, joins Melissa, Leah, and Kate to recap the arguments in Haaland v. Brackeen. The case revolves around the Indian Child Welfare Act, which lays out a set of preferences for where Native American children can be placed for foster care and adoption. The challengers, white foster parents trying to adopt Native American children, are claiming a violation of the Equal Protection Clause of the 14th Amendment. But as Rebecca explains, tribal sovereignty isn’t racial– it’s political.

Plus, we take a look at the midterm outcomes and what they mean for the courts.




Melissa Murray [AD]


Show Intro Chief Justice, may it please the court. It’s an old joke but when an argued man  man argues against two beautiful ladies like this, they’re going to have the last word. She spoke, not elegantly, but with unmistakable clarity. She said, I ask no favor for my sex. All I ask of our brethren is that they take their feet off our necks.


Melissa Murray Hello listeners and welcome back to Strict Scrutiny, your podcast about the Supreme Court and the legal culture that surrounds it. We’re your hosts. I’m Melissa Murray.


Kate Shaw I’m Kate Shaw.


Leah Litman And I’m Leah Lippman. And today we have a jam packed episode with a lot of big cases the court heard last week, as well as some big court culture segments. But first up, we have some midterms to talk about.


Melissa Murray So general results. Folks were predicting a kind of red wave, but really all we saw was some light spotting. Can I say that? Is mentrual humor okay?


Leah Litman I think so.


Melissa Murray I’m going to go with menstrual humor because, DOBBS. So, folks, the red wave just didn’t happen. Or if it did happen, it was a wave that I could surf, which meant it wasn’t much of a wave at all. So the Senate seat pickup in Pennsylvania was huge news. And at the time that we are recording this, the House majority is still to be determined. But what we do know is that it was not the bloodbath that was predicted. It was not Game of Thrones style Red Wedding, which is what had been predicted by all of those people who said that nobody cared about Dobbs. All they cared about were gas prices and inflation and sticking it to the libs. So that was really heartening to see that Congress and congressional control was much narrower than predicted. But what was also heartening was that there were some really big changes in statewide races. So the Michigan Democrats now control the state House for the first time since 1983, and there were Democratic wins.


Kate Shaw We take a beat on the rest of it.


Melissa Murray Okay, sorry. Let’s watch.


Kate Shaw As the state houses, the governor, the attorney general, the secretary of state.


Melissa Murray There are also big wins in the state houses in Pennsylvania and Wisconsin, where Democrats were elected to governor and so much more. Some really interesting and important wins here that some were just truly, honestly not expected. And so this was perhaps a better night than many people were gearing up for. But there was some very interesting postmortem commentary, especially from Fox, says Jesse Waters. So let’s listen to that.


Clip But single women and voters under 40 have been captured by Democrats, so we need these ladies to get married. And it’s time to fall in love and just settle down, guys. Go put a ring on it.


Melissa Murray Hmm. Hmm.


Leah Litman Control the women the way marrying them off.


Kate Shaw This is the for your party to actually turn your loss into victory. You got it. Jesse Waters, genius, political strategist.


Melissa Murray Marriage as punishment. Literally.


Leah Litman It sounds like an article.


Melissa Murray Yeah. Someone should write that. Someone should write that.


Leah Litman Melissa wrote an article about marriage as punishment.


Melissa Murray Many moons ago. Who knew?


Leah Litman A post recording update on the midterms with Senator Cortez Masto winning Nevada. Democrats have retained control in the Senate, but there is still a Georgia runoff listeners, and that runoff still really matters. And that’s not just because it would be better for Georgians or better in some abstract sense to have the amazing Reverend Senator Raphael Warnock in the Senate representing Georgia rather than the Dwight Schrute esque volunteer Deputy Sheriff Herschel Walker, who, in addition to moonlighting as a Keystone Cop, also occasionally moonlights as an abortion rights for my mistresses and me, but not for the character. No, it matters in very real ways. There are huge differences between a 5050 Senate and a 5149 Senate, including four issues like the courts, which we talk about on this podcast a lot. First, a 5149 Senate would mean having a majority on each committee rather than vote deadlocks that require discharge petitions. Discharge petitions that are required after, you know, a committee deadlocks on a nominee. That’s how a lot of nominees are held up and why they’re still waiting for confirmation because the committee is deadlocked. And so in order to get a nominee out of committee, you need a whole other vote. And that whole other vote might require the vice president to be president to break the tie in a 5050 Senate on that vote. And look, the vice president, she’s kind of busy. Second, a 5149 Senate also means no single Democratic senator can hijack or block nominations. This is where you hear me staring in your stone cinema. And finally, a 5149 Senate means Democrats can have two members absent and still hold votes. That’s also really important. There have been several votes that have been held up or haven’t happened at all because Democratic senators got sick with COVID or something else and therefore weren’t able to be present. So 5149 Senate would allow Democrats to pick up the pace of judicial confirmations, and that could mean getting great nominees like Julie Rickman or Dale Ho and more actually through the confirmation process in a timely manner. Plus, looking ahead, the 2020 format for Democrats in the Senate is it’s challenging. There are Democratic seats up for election in purple states like Nevada, Washington, Pennsylvania, Arizona, New Mexico, Wisconsin, and also in red states like West Virginia, Montana and Ohio. Given the Senate outlook, every seat is mission critical. So a 5149 Senate would be huge. Figure out a way to pitch in for the Georgia runoffs to keep Reverend Raphael Warnock in the Senate. If you like this, post midterms glow your feeling. Make sure you feel it again in December. We wanted to talk some about the midterms and in particular how they related to the court. You know, the courts generally and law. And one aspect of the story is the Supreme Court’s effect on, you know, races at both the state and the federal level. You know, the Supreme Court established a bunch of important rules and changed the rules regarding distracting and redistricting in ways that seemed to have meaningfully affected, you know, the composition of the House at the federal level as well as statehouses, you know, at the state level. And that’s in part by the Supreme Court greenlighting partizan gerrymandering, saying that the federal courts can’t remedy partizan gerrymanders. And it’s in part for that reason, you know, that Florida was able to ram through, write a set of district maps that basically secured Republicans additional House seats, you know, seats in Congress. It’s also happening in Wisconsin state houses where, you know, Democrats won 51% of the statewide vote but will hold only 30% of the seats in the state legislature. It’s not just partizan gerrymandering, though. It’s also because the Supreme Court basically suspended the operation of the Voting Rights Act, prohibitions on voter dilution, you know, allowing Alabama to put into effect maps that diluted the votes of racial minorities, giving, you know, Republicans an additional seat in Congress. And then, you know, district courts doing the same in Louisiana and Georgia. The Supreme Court did the same thing when it came to the Wisconsin state maps. You know, this is also partially a story of the courts dismantling, you know, the preclearance regime in the Voting Rights Act in Shelby County, dismantling like the protections against voting preconditions in BRNOVICH and I could go on but that’s just. I think an important part of the story that I didn’t necessarily hear in a ton of the commentary about it.


Melissa Murray I think a lot of people did focus on the fact that a lot of the House gains, especially, were the result of redistricting and redrawn maps. But a lot of the pundits did not connect that to the work of the court, whether it was in Russo versus common cause, sort of abstaining from Partizan gerrymandering or the work that had happened in Shelby County, or alternatively, the fact that the court had allowed there were shadow docket decisions, the map in Alabama and some of these other jurisdictions to go into effect, even though they were patently unconstitutional and unlawful. And that connection wasn’t made. And we’ve talked about this before. When we did Merrill versus Milligan, we noted that the issue in Merrill is, you know, in the foreground, but the impact of keeping that map was going to be felt in this midterm election. And we definitely saw that.


Kate Shaw And it could very well be that the House control comes down to one or two seats. It actually looks like the math might shake out that way. And if that’s the case, the Supreme Court, without explanation. Right. Allowed maps found to unlawfully discriminate on the basis of race to be used in this cycle in Alabama and Louisiana. So that absolutely could be, you know, in a very precise and direct way, the cause of Republican control of the House of Representatives. Well, see. Yeah.


Melissa Murray Super nonpartisan, super neutral.


Kate Shaw Right.


Leah Litman Exactly. Very nonpolitical. Non-ideological. Not a bunch of partizan hacks. Just read the opinion, which doesn’t exist. Okay. You know, but another part of the story is, I think, you know, the effect of the Supreme Court’s rulings on other issues, in particular Dobbs versus Jackson Women’s Health Organization, you know, the court’s overruling of Roe and how that affected turnout rate and preferences in this election. You know, there were several initiatives on statewide ballot about reproductive freedom. And reproductive freedom went five, four, five. You know, on those ballot initiatives, you know, protections for abortion and reproductive freedom were added to state constitutions in Michigan, California and Vermont. And efforts to roll back abortion rights were defeated in Kentucky and Montana, which kind of invites this question that I hope organizers and the Democratic Party take seriously, which is running against the court in the future. The conservative supermajority on the Supreme Court is a reality that basically means, like the Republicans are going to be the party in power in a meaningful way in basically the near-term future elections. And so you should be able to run against a party in power, tell people what they are doing. And I think that that has to be part of the story.


Melissa Murray Which was what was so maddening about the coverage of the House races and the connection to redistricting, but not the connection to the court and redistricting, which I think was right. But, you know, we are I think we really do have to give it up for our boy, Sam Alito, who said women were not without political power and apparently he was right. Is this a vindication of Dobbs and Democratic deliberation or or why?


Leah Litman You know, as I said when we initially discussed Dobbs, if the Supreme Court, all of us said white men do not have a constitutional protection against forced vasectomies, and then you put that issue to the voters and a majority of people say you cannot forcibly sterilize men. I’m not sure that that vindicates a court saying you actually have a actually don’t have a constitutional right against forced sterilization. But having said that, as we talked about in the episode before the midterms, I do think it was very important for people to come out and make a display of what the Supreme Court did is not okay. And it is important to us to try to push back and take a stand against that issue. And I at least personally feel like the issue of abortion, reproductive freedom was underestimated in the effect it could have in this election, particularly in the initial lead up to the election, like the period right before it. And honestly, a part of me was buying into this at the end, like I was very concerned about whether people were going to show up to the polls in a way that I felt like they were energized to do so in, say, July and August. And a part of me just wonders whether this is a reflection of a system that, at least from my perspective, is skeptical about or nervous about considering or focusing on women’s issues and interests like it is fun for both the douche bag left and the waters type misogynist to make fun of the idea that women’s issues and women’s interests. Should be treated seriously, should be given attention. Right. And they make fun of issues because. Right. They are issues that affect women or they make fun of things that like women like or women care about. And just a lot of complicated emotions about what people are. We’re predicting about this election and saying about, you know, what what happened in it.


Kate Shaw Yeah. And I think that minimizing of the importance that issue, I think there’s, you know, kind of like a substantive normative vehemence to it. But I also think that one other explanation is like young people were incredibly hard about this issue and pollsters just didn’t figure out a way to talk to young people. And I think that was part of the disconnect we saw between the polling and what actually happened.


Melissa Murray Because they couldn’t text them.


Leah Litman Exactly. They won’t pick up their phones. Right. You can’t. Yeah. They won’t answer emails. And so unless you’re running polls on tick tock like, you’re going to know, that’s not the.


Kate Shaw Right way to do.


Leah Litman Yeah, right. You’re going to miss them and. Yes. No, I did not mean to do, like, understated all the importance of youth turnout, which was extremely encouraging and I hope continues.


Kate Shaw Yeah. Emma Okay, maybe let’s just take a beat on state courts. So state courts, I think, were important players in terms of the result we saw Tuesday in a couple of different ways. A one, New York’s courts had invalidated the state’s initial map that was, you know, very much a Democratic gerrymander, but one that could have counteracted incredibly aggressive Republican gerrymanders in states where state courts allowed those gerrymandered maps to go into force. I think Nick STEPHANOPOULOS from Harvard had a really interesting argument, I think, in Slate that basically said, you know, when thinking about whether New York should have the New York court should have or should not have struck down this map, say it really was a gerrymander. It’s important to take the nationwide view. And in light of these wildly gerrymandered Republican maps, the New York Court of Appeals should have allowed the democratically gerrymandered map to go into effect, but it did not. And that’s in part attributable to kind of New York specific conditions, which have to do with former Governor Cuomo’s appointments to the New York Court of Appeals, which is our highest court here. So but there’s just a broader lesson, which is that courts matter a great deal in terms of the maps we use to vote for our representatives in both state legislatures and in Congress. So that was, I think, dynamic one to Whitmer. You know, who is going to get to serve another term as governor of Michigan, will get a michigan Supreme Court appointment? That’s super important. But the North Carolina Supreme Court flipped to GOP control and that’s important. Right. One of the kind of deep currents in the Moore versus Harper case was that you had this Republican legislature really gerrymander this map. And the North Carolina Supreme Court, which at the time was under Democratic control, struck that map down. But that court’s composition has now flipped, which I think will really change the political dynamics in North Carolina. And then one last thing to highlight, as soon as the results of this election are in, all of our attention is going to turn to the Wisconsin Supreme Court election, which is scheduled for early 2023, which will determine control of that incredibly important court. And as we just talked about, that legislature is, you know, probably the worst partizan gerrymander in the country. And it will matter a great deal, the composition of the Wisconsin Supreme Court. So we’ll be very focused on that.


Leah Litman And I wanted to underscore something we had talked about on previous episodes, which was, you know, partially the importance of voting, partially the importance of getting involved. And when we talked about the 2020 election, we basically said, look, it felt like you needed to be above the margin of litigation. Democrats needed to win in a way where GOP appointed judges couldn’t, you know, then throw the election to Republicans. And I feel like people should look around at some of these races, a lot of these races, and realize that they were kind of within a margin of effort. Right. Like many of them came down to a few votes, a small number of votes. Those are things that make the work worth it. This means like there are results that you can achieve if you put in the work. And I just hope that people feel like some sense of hope or encouragement and a desire to find ways to get involved going forward, whether that’s helping cure ballots, you know, in Nevada or Colorado, whether that is getting involved in the Wisconsin Supreme Court race, that’s going to be, you know, in spring 2023 or just doing this again in the next election is so important. And again, like some of these margins are so small and it just feels like that has to be a sign that it’s worth fighting for. And you can accomplish something if you do the work.


Kate Shaw Yeah. One more thing to flag. There are currently 86 vacancies in the lower federal courts. Some of them do have nominees, some don’t. Some vacancies have not yet had anyone nominated to fill them. And, you know, it seems to me absolutely critical that President Biden and Senate Democrats get every single one of those seats filled.


Melissa Murray [AD].


Melissa Murray Let’s turn to the recaps. So, Kate, what’s up first?


Kate Shaw So first up is Haaland versus Brackeen. This is a major challenge to acquire the Indian Child Welfare Act, which establishes federal standards before states can remove native children from their families and if they are removed for the placement of those children in foster care and adoptive homes. And to help us break down this argument, we are so fortunate to be joined today by Rebecca Nagle, the host of Crooked Media’s This Land podcast and the second season of that podcast is focused on the Brackeen case. And honestly, some of what Rebecca uncovers in the course of reporting on this case and its background will genuinely blow your mind. You should all listen to this land if you haven’t. Rebecca, welcome to Strict Scrutiny.


Rebecca Nagle Well, thanks so much for having me.


Kate Shaw Okay, so for purposes of this conversation, we’re going to focus on the oral argument that happened last week. We will start by briefly describing the legal issues in the case, since we didn’t have the chance to preview it last week. And then we will dove right into the recap.


Melissa Murray Okay. So just in terms of level setting, Congress enacted ICWA in 1978 in response to a long history, frankly, appalling treatment of native families by the state and the federal government. So, for example, during what some historians call the allotment and assimilation era, the Federal Bureau of Indian Affairs and its agents sought to re socialize Native Americans into Anglo-American norms and culture. And one of the most pernicious aspects of this period was the pervasive removal of native children from their families to boarding schools where they were taught Anglo norms and culture and instructed to abandon native languages and customs. In the mid 20th century, state level child welfare authorities would often enter reservations, would determine that native children were being neglected and would remove the children from their families, often placing them in Anglo foster families or allowing them to be adopted into Anglo families. The tribes really focused on these episodes, the boarding schools and the removal of native children from their families, and they argued that these episodes deprive the tribes of their future and constituted a kind of genocidal decimation of native culture and sovereignties. And in response, the tribes lobbied Congress for greater control over child welfare matters that involved native children. And the result was the ICWA. Which was passed with bipartisan support in 1978. But as Rebecca’s podcast makes clear, in recent years, ICWA has come under fire from conservatives as perpetuating racial segregation and discrimination in adoption and child welfare, thwarting the rights of prospective adoptive parents, namely white adoptive parents, and conscripting the states into the service of a broad federal legislative scheme in violation of the 10th Amendment.


Leah Litman And these cases reprised all of those themes. So the first question presented in the case is whether Congress had the authority under the Constitution to enact ICWA. The challengers argue that Congress does not have the authority to regulate in like some area that includes ICWA baby. That area is adoptions or family law generally unclear when it exercises its power over Native American affairs. And this challenge builds on Justice Thomas’s efforts to question the scope of Congress’s powers in this area, efforts that were based on Robert Natelson’s scholarship at Natelson was a law professor at the University of Montana, and in 2007 he wrote an article on the original understanding of the Indian Commerce Clause in the Denver Law Review, which argued for a very narrow reading of Congress’s authority to regulate native affairs. More recent scholarship, however, has debunked the narrow reading floated by Justice Thomas and advanced by Natelson, including scholarship by Professor Greg Ablavsky, a professor at Stanford Law School and former strict scrutiny guest. So in his article Beyond the Indian Commerce Clause, Greg showed that commerce with Indian tribes was routinely used to describe far more than a trade of goods, and that founding era authorities viewed tribes as sovereigns. This prompted Natelson to call Ablavsky, among other things, a shyster Supreme Court. Like if you are looking for an example of anti-Semitism, I have one for you. And it’s not Harvard’s admissions policies. Natelson released a site check of Ablavsky’s work, which Greg immediately and promptly responded to again, underscoring the rigor and care with which Greg approached this question.


Kate Shaw The second big question is whether provisions of ICWA regarding placement preferences constitute race discrimination because they establish protections and standards that facilitate the placement of Native children with Native families. And the challengers argue that this is unconstitutional discrimination on the basis of race.


Melissa Murray Note, in a 1970s case, Morton versus McCarthy, the court determined that Native American status was not a racial category, but rather a political classification. So this question implicates not only the line of cases dealing with equal, but also Morton versus McCurry and the whole question of Indian status as a political category rather than a racial classification. And that’s not even it. There’s a third question here, folks. And the third question is whether the require by requiring state courts to apply. High standards for both recordkeeping and placement preferences and prioritization and adoption in other child welfare proceedings violates the 10th Amendment by conscripting state officials into a federal legislative program.


Kate Shaw Okay. So, Rebecca, thank you so much for being with us while we did all of this legal table setting. Now, can you talk to us about the stakes of this case? Just why is this case so important?


Rebecca Nagle Absolutely. You know, I was at the Supreme Court Wednesday morning talking to tribal leaders and folks from really across the country who were standing outside. And I was asking them the same question. And over and over again, what I heard is everything, you know, all of tribal sovereignty is literally on the table. And it takes a couple of steps for, I think, people to understand why. I think you guys did a great job of breaking down the very complicated arguments that sometimes don’t quite make sense. But so the plaintiffs in this case are arguing that equal discriminates based on race. And a lot of people in the U.S. think of Native Americans as a racial group. But that’s not how the law works under the law. We’re a political group. And so tribes and tribal citizens have a different set of laws that apply to us. Really going back to the founding of the republic. And so if equal can’t treat Native children or native foster parents differently than non-native folks, then what about health care? What about education laws? What about laws that allow tribes to operate casinos in states where non-native casino developers can? If we’re just a racial group, what racial group in the United States has their own land rights, their own water rights, their own environmental regulations, their own election, their own police force. And so the fear is that this case is kind of being used as the first in a set of dominoes, where if they can topple ICWA, then they can really gut tribal sovereignty with it. And I would just say, you know, you guys talked about the boarding school era and the Indian adoption project in the fifties and sixties. And both of those policies of removing native children coincided with broader attacks on tribal sovereignty. And so it’s not the first time in U.S. history, tragically, that native children have been used as the tip of the spear in a broader attack on tribes.


Melissa Murray So, Rebecca, you were actually in the courtroom when this case was argued last week on Wednesday. How do you think the argument went?


Rebecca Nagle It was very interesting. I mean, there were four justices who were very obviously skeptical of the plaintiffs and Texas arguments. One of the things that they were asking was, you know, and the kind of first question that you brought up, does Congress have this authority to pass a law like ICWA was? Okay. Well, if Congress doesn’t have the authority, where do you draw the line? And so, you know, the plaintiffs are trying to draw the line in different places where it’s like about regulating things, whether it’s happening on tribal land or off tribal land or, you know, that family law is this unique area. And every time they kind of came up with a new standard during oral arguments, the justices would kind of counter with other laws that that would then desimate. I mean, there was this moment where Gorsuch said something like, I think we would be busy for the next several years, like if we ruled in your favor. But the thing I think that’s concerning is that the people, the justices who were expressing that obvious skepticism were only four. And so there were also justices who seemed to really buy into the argument. So Kavanaugh more than once asked these kind of very like loaded to me, very like political questions of like, well, we couldn’t pass a law that only white people could adopt white children or only Asian people could adopt Asian children, which is just not how the law works. And so, yeah, I mean, I think what I took away is that I do think that there’s a plurality of the justices who are interested in undoing ICWA, but I think that they’re going to have a really, really hard time getting there legally.


Melissa Murray I think this is really interesting, Rebecca. You sort of mentioned like they’re four justices. We’re not used to thinking in a 5 to 4 world like that was, you know, two terms ago, we thought, and 5 to 4. But this is one of those rare cases where we have Justice Gorsuch, who has a particular propensity for federal Indian law and has been very, I think, assertive about protecting the sovereignty of tribes. And so there is a kind of weird, strange bedfellows coalition that’s being formed with the three justices on the liberal wing and Justice Gorsuch. And so this is kind of a wild card and unusual.


Rebecca Nagle Yeah, absolutely.


Leah Litman We’ve kind of said this before, but at this argument, it was really on display where it felt like the extent to which some members of the court, as well as some of the, you know, Republican litigants who were emboldened by the Republican. A supermajority of the court are really just content running on straight up vibes and bulldozing through the niceties or formalities of law. And this came out in kind of all of the different arguments the challengers were making. So on the challenge to Congress’s authority. As you kind of noted, Rebecca, you had the justices observing correctly. I’d add that look, like we have said in previous cases that Congress powers in this area are plenary. So like, where are you getting these limits from? So let’s play this clip of Justice Kagan with the Texas solicitor general, two D, Judd Stone here.


Clip General, I’m curious as to where you get those three categories. There are normative description of what this court has, in fact, done. I mean, there’s no other place. There’s no place where we’ve said these are the three categories that define what the plenary power means.


Leah Litman Texas Solicitor General Judd with two d Stone response kind of caused Justice Kagan to just straight up laugh in his face when he says he is doing, quote, normative descriptions to identify these limits. You know, I think normative descriptions mean he’s saying, here’s what I think the law should be, Your Honor. So could you just do me a solid and make it so? And it provokes this response from Justice Kagan.


Clip I don’t think you’ll be able to find a place where the court has said what the plenary power means is these three things and these three things alone. And the plenary power doesn’t extend further because after all, the court has said I mean, I don’t really believe in in reading our opinions like statutes, but when the court uses the phrase plenary power tens and tens of times over decades and decades, I mean, plenary means unqualified. That means all encompassing. Now, I don’t doubt what you said earlier that it might have an occasional exception here or there, but it strikes me as a very odd way to think about plenary power, to just start like constructing categories and leap and saying everything else is left out. When we’ve said over and over, everything except really rare things are in.


Kate Shaw This argument by the Texas solicitor general also drew the ire of Justice Gorsuch, who basically told Stone he was just making stuff up and ignoring history. So let’s play that clip here.


Clip Of recognized Indians. Well, that’s simply not true. I mean, you can state that at the podium. But if I look through Title 25, there are health care promises to individual Native Americans who live in urban areas. So let’s just take that one. First of all, Your Honor, that strikes me throughout.


Kate Shaw The hours of argument, the three big challenges we’re kind of woven together. But did you come away with any sense about whether, you know, the conservatives, to my mind, were really receptive to the race discrimination, kind of the second claim, but I couldn’t totally get a beat on where they all were with respect to this kind of antecedent challenge to Congress’s authority in the first place to enact, acquire. So just curious what your reaction to that component of the argument was?


Rebecca Nagle Yeah, I mean, I think there was a ton of back and forth about what kind of authority Congress had. I mean, I think that there’s also some kind of like a couple tracks that they could go down. You know, if they say that it can’t have this authority because it’s the area of family law, you know, there’s like congressional laws about like parental kidnaping and also like protecting the parental rights of service members that I just am like, okay. Supreme Court, do you also want to eviscerate those laws? I think there would be some blowback from that or maybe not. I don’t know. But, you know, I think the big thing that I walked away with was just how, you know, how you guys talk about like it’s vibe’s not wise. I also think it’s not the truth and not reality. You know, I mean, I think just the concept that these white foster parents were discriminated against is insane. For the most part, they won custody of these children when native family members like blood relatives, also wanted to raise them, which is where all foster children should go, whether or not their case falls under ICWA. And then it was so hard to hear, especially the conservative justices, really hype on this idea of the third placement preference. And ICWA, which very quickly is equal, sets out placement preferences of a foster child’s not reunified with their parents. And so that’s another blood relative, another member of that child’s tribe. And then the third placement preference is another member of a federally recognized tribe in the United States. And really the reason that that preference is there is that, you know, like there are three federally recognized Cherokee tribes. There are tribes that have that share a reservation. You know, I mean, there are oftentimes people who might be citizens of different tribes, but still have those relationships, you know. And so but the third placement preference didn’t come up in any of the underlying custody cases. So it’s not even a type of discrimination that the plaintiffs. Eagerly should be able to claim that they experienced. And so there are just all of these things about the case where it felt like the justices are really far removed from what’s happening on the ground and the reality of how it works in people’s lives. And I think the other thing that was hard for me is as somebody who did a lot of reporting, you know, I went out and talked to the family members who wanted to raise those babies. And, you know, one native grandmother, the one native family member who won custody and had to spend six years fighting to adopt her grandbaby, first fighting like an extremely biased child welfare system, and then another three years in litigation with these white foster parents. And to frame, you know, like Chad and Jennifer Brackeen as the primary victims or, you know, and a lot of like Kavanaugh and Alito’s questioning, it was these imaginary foster parents that can’t adopt Native kids as the primary victims of what is actually happening in foster care. When I’ve reported on it and I’ve seen it, it was just yeah. I mean, I think just what the court was concerned about to me felt so divorced from people’s lives. And I think it shows just how the court is just really removed from how the law actually impacts people’s lives in a way that I think is concerning.


Melissa Murray There’s also, I think, this idea, again, around the whole question of Congress’s authorization to pass ICWA. There’s something really unfair and wrong and discordant about an argument that recognizes the federal government has exercised plenary authority over native tribes in the past. But but it’s been to pursue strategies of subordination and exclusion. And now that Congress is exercising its authority in a remedial way to protect native sovereignty and authority through IGA, all of a sudden that’s the problem. That’s the race problem. And again, everything that you said, I think the specter of race hangs all over this and it’s just really hard to disaggregate the question of race and the idea of these prospective adoptive parents, these white prospective adoptive parents as the victims. And that’s such a Roberts court move as well, sort of, you know, recasting and Masterpiece Cakeshop, the baker who doesn’t want to provide services to the gay couple. He’s the victim because, you know, someone on the lower tribunal, you know, asked the question or said something about the fact of how religion has been used to exclude people in the past. So, again, I thought this was all really interesting and so did Justice Sotomayor. So she also thought that the no law justice vibes problem not only haunted the discussion of Congress’s authority, but it also extended to the court’s discussion of the equal protection challenges, including the challenge to the third preference, as you note. So let’s hear her here.


Clip This is quite a theory you have.


Leah Litman And at one point, Justice Kagan kind of asked the Texas Solicitor General Stone, like, is there any actual law in your brief and that prompts this exchange?


Clip General, I thought I’d just give you a chance to respond to a reaction I had to your brief. And the reaction was that there is an extraordinary amount of Texas view of policy in your brief.


Kate Shaw And yet Stone kind of admits there isn’t right that this is just vibes. In his brief for the great state of Texas.


Clip Two parts are the first is I agree that those observations, as those statements of Texas’s views have nothing to do with non delegate or non delegation anti commandeering or Article one challenges whatsoever. Those live or die on various legal principles that are not those. They’re just atmosphere. They’re in part atmosphere. Yes, Your Honor. In part because.


Kate Shaw He said that’s what it was. That’s not supposed to be what’s in your brief. I couldn’t believe he just admitted it.


Rebecca Nagle Yeah.


Leah Litman On this equal protection point in particular, you know, there was an exchange I wanted to highlight from noted expert on race, law, culture and rural Africans, Justice Samuel Alito. And that is when he posed the question like and it’s about this third placement preference you flag. Rebecca Like how much in common can tribes possibly have with one another since they were at war at the founding? And it’s like this argument is so blind to the history of discrimination against tribes, right? The history and practice of racial discrimination is like part of what forges collective identities, and it ignores that all native tribes have a political relationship to the United States. And classifying it as race like that is the race discrimination, like the inability to kind of think about this critically was was I have to admit, like even a little surprising to me. Was it?


Rebecca Nagle Yeah, I would just say, I think unfortunately, shockingly racist comments coming from federal judges is something as a reporter who covers these cases, I’ve become used. You know, on the Fifth Circuit Court of Appeals, there was a judge who was searching for a hypothetical and came up with some scenario about Native Americans having too many, like drunk driving incidents, like pulling on this racist stereotype that all Native people are drunks. And then, of course, we had, like Justice Alito is extremely racist comment on Wednesday that we’re all at war with each other. I think you saw really similar things the last time ICWA was in front of the Supreme Court. I mean, there is a whole exchange where the justices were literally asking each other what a federally recognized tribe even is, which is terrifying to think that they don’t know. And so, yeah, I would just say that’s a huge barrier for indigenous rights here in this country. You know, what are we we have a really disproportionate amount of our cases go through federal courts just because of the way that federal Indian law works. You know, we go up in front of the Supreme Court, probably more than any other group in the U.S. And it’s a place that has been traditionally very hostile to indigenous rights. You know, we don’t have a great track record at the court. And I think, you know, you’re talking about the like not law, just vibes attitude of this court. And it’s a problem that Native people have been dealing with, I would say, for at least half a century. You know, when the justices don’t like or don’t understand where the law gets them, if they follow it strictly, they just make stuff up. And courts have been doing that in the arena of federal Indian law for a long time. And so we’ll see what comes out of this. But that’s what Kavanaugh did. And Castro, he just kind of rewrote the relationship that tribes have with states, you know, like wrote some crazy stuff that like, unbeknownst to law professors everywhere, like Gustave Georgia is no longer like good law. You know, like. And so it.


Leah Litman It had been abandoned. No big deal.


Rebecca Nagle Yeah. Yeah. We just thought we just all missed it for like 150 years. But Kavanaugh, like, let us know what’s really going on. I mean, you know, and that’s kind of those kinds of opinions are actually really common in the area of federal Indian law. I do think that people who are having this moment of fear or panic or just like shock at how extreme the Supreme Court has gotten in the past couple of terms might have something to learn from native advocates, because we’ve been dealing with this for a while of just not feeling like the courts is a place that we can trust to. I mean, it’s not even about upholding rights or anything. It’s really just kind of coming down to following the law because we don’t, you know, cases don’t go to the Supreme Court because it’s going to be a big win. It’s like it’s mostly trying to prevent a loss. And unfortunately, that’s what this case is.


Melissa Murray On that note, Rebecca, you know, I think definitely folks in the civil rights community can definitely sympathize with that particular perspective. But it’s also worth noting here and again, this is taking another beat on this whole question of race and equal protection and the status of tribes here. But it is worth noting that at least since the 1980s so right after ICWA, there were certain facets of the African-American community that argued for an equal style preference for placing black children with black families and limiting the prospect of transracial adoptions into white families. And I think you can’t understand the colloquy between the justices and the advocates here about the permissibility of prioritizing native identity in the placement process without reference to what is an a broader and very pitched debate about allowing non minorities to adopt and parent minority children. And that was definitely on point here.


Rebecca Nagle And it’s even more connected than you think because the person who spearheaded fighting that policy and so it was stopped actually by congressional policy because there’s like and I’m probably going to mess up the name, but some multiethnic placement. Yeah, yeah, yeah. So the guy who worked on that is named Clint Bullock.


Melissa Murray And yes! He’s an Arizona Supreme Court justice now.


Rebecca Nagle And before he was an Arizona Supreme Court justice, he was the head litigator at the Goldwater Institute, and he helped.


Melissa Murray His wife is also a Ginni Thomas correspondent, email correspondent. I think her name is Shawna. Is that right, Leah?


Leah Litman Yep, yep. Yeah.


Rebecca Nagle So together Clint Bullock is like one of the people because, you know, in the past decade, ICWA has been challenged nearly as many times as Affordable Care Act. And it’s just like tiny, tiny handful of people who’ve kind of got this whole litigation strategy off the ground. And Clint Bullock is one of the main people who did it. So he got funding from the Bradley Foundation for Goldwater to start what he called a state based litigation alliance to bring kind of like how? There’s coordinated bills in states. The conservatives wanted to do the same thing, but with strategic litigation. And so Clint was trying to get that off the ground and used antiquark, he says, as some of the like, early test cases. And so, yeah, it is all connected because like him and Roberts go back, you know, this whole idea that the way that the world should be is race neutral or you know, that that’s true. Justice is that our law is like blind to race is a decades long project. It’s so ahistorical to what the 14th Amendment was and why it was passed and the historical context around it. And what I think has happened is, you know, I think people were talking about affirmative action. I think people don’t realize, like how gutted it already has been made by these folks. But one place where they did not have much success is in the arena of federal Indian law. And so it’s sort of they’re coming back around. Not that, but yeah, it’s it’s very connected. And also and you I mean, you’re you teach there, so you probably know better than I do. But there are a bunch of studies about, you know, how those children did who were then placed with families that weren’t of their ethnic and racial group. And it was not good, you know, was not well. And so it’s also, again, just about this rhetoric around race and not really about people being really invested in the well-being of children.


Kate Shaw Just quickly, to your point on how gutted affirmative action already has been, even before the argument last week in the Harvard and USC cases, I thought it was really telling that the government, the federal government’s lawyer at Kneedler, was just like, as these conservative justices were opposing hypos about placement for, you know, on the basis of race or with, you know, Catholicism, Kavanaugh said. Neither was like, oh, no, no, obviously that wouldn’t be okay. It’s like there’s already been an abandonment of that sort of even the federal government’s like, well, maybe that’s not this case. There was just like, you know, that was already sort of conceded by the federal government. But the federal government, of course, said that this is different because it is a political as opposed to a racial classification. Mm hmm.


Leah Litman I said this on Twitter, but I want to put it on the podcast. In particular, I wanted to give a shout out to Ian Gershengorn, who was arguing in support of equal on behalf of several tribes. I thought he was phenomenal. So, Rebecca, you’ve already kind of alluded to some of the details about how it actually works. And I at least thought like and did a pretty good job explaining to the justices how it actually works. You know, this case has so many parallels to the affirmative action cases, some of which we’ve already alluded to. And one is just how the challengers want to depict to be something that it’s not like. They want to suggest that states are identifying a placement that would actually be in the best interests of a child. And then they somehow reject that placement in order to keep a child with a native community. But as Ian explained, like that is not how it works. And he emphasized it was based on decades of research and findings about how the general best interests of the child standard that states were using resulted in breaking up native families and homes against the best interests of both children and native communities. So maybe let’s play a clip of this primer on ICWA.


Clip Do you think that ICWA incorporates the familiar best interests of the child inquiry that are applied in family courts throughout the country? So I think I’d have to say the answer to that is no. What it could does is modify that, because Congress made the judgment that the best interest standard was being applied in a way that resulted in unwarranted removals. What Congress did was create a system it thought was in the best interests of the child, but not by adopting the, quote, state best interests of the child standard, because it found that that was being applied in a discriminatory way. Now, so, Your Honor, there’s been a lot of back and forth about good cause and seems like good cause is important in the statute. I will say candidly, having looked at the cases, there are three the state courts are in a little bit of disarray as to whether the preferences are sort of binding, whether there’s a straight free floating best interest standard, that sort of that that works through good cause or whether, as I think is probably the way Congress intended it, that there is a the placements are the default setting and good cause provides a way to rebut the presumption. Now Interior has has explained how good cause works. It involves you can take into account the decisions of the views of the parents, the views of the child. If the child is old enough to express them, you can take into account sibling attachment. You can take into account bonding with foster parents as long as it was not done illegally through equa. The thing you cannot take into account is socioeconomic status. So what the Casey brief and others say and what the reason why medical professionals are here, states are here, family rights advocates are here is because equity is the gold standard. It adopts that those evidence based presumptions and allows for flexibility to protect the best interests of the child.


Melissa Murray The thing that was so interesting about this, Leah, is that it’s not even as though the advocates were saying that ICWA was basically preempting the prospect of the children being placed. In these homes that were found to be homes that would be fit and in their best interests. It’s actually that they’re suggesting that the native homes would be unfit, would presumptively unfit, and they’re literally recapitulating.


Kate Shaw The dynamics that echo what was drafted to respond to, because the judges in state family courts were implementing these same biases and ICWA’s trying to override them. And you saw the justices just channeling the pre ICWA thinking about those kids.


Melissa Murray It was a microaggression at work like these families


Leah Litman Macro- macro aggression.


Melissa Murray Presumptively unfit.


Rebecca Nagle And I think like you don’t have to look further than the stories of the three plaintiffs who brought this lawsuit to see exactly why the Indian Child Welfare Act is still necessary. So the three plaintiffs collectively tried to adopt four children or three groups of plaintiffs, I should say, because their couples try to adopt four native children. One child who, which was frustratingly the focus of arguments, was actually born after the lawsuit was filed and amended. So legally, her case isn’t part of the lawsuit in front of the Supreme Court. Why RJ? But anyways, all of the children, all four native children had a blood relative who wanted to race them, and every native blood relative got pushed back, whether it was from a social worker, a family court judge, a foster parent, or all three and only one grandma was able to adopt her grandchild and she had to spend six years fighting. And so when you look at how the native families were treated, they faced objectively way more hurdles than the plaintiffs who are bringing this case. And so this idea just doesn’t even match the reality on the ground. It doesn’t match what happened in these cases. And it’s also just not matching what’s happening routinely and the way that it was applied.


Leah Litman Yeah. And you know, before Ian Gershengorn stood up at the podium or lectern, I thought that there were five votes or I heard five votes for ruling against ICWA on equal protection grounds after he sat down. I think there is a possibility he found a fifth vote to say, look, the challengers haven’t identified an actionable equal protection theory against the entire statute and how it’s actually operating in reality, as you note, maybe in individual cases there could be a challenge, but those cases just haven’t ever arisen and might not ever arise. So let’s play him effectively rebutting this equal protection challenge and particular to the third placement preference.


Clip It is based on the view that that that all federally recognized for all federally recognized tribes and members of those tribes share a common political relationship with the United States. That’s what renders it political rather than racial. Every member of a federally recognized tribes shares that political relationship. Now, that then begs the question that a number of the justices have focused on about is it rational? That’s a fair question and that’s a fair debate. Let me explain why I think it clearly is rational. And some of this Mr. Kneedler touched on, and I agree with it, has a clearly remember we’re talking about a prong that was never applied to any of the of the plaintiffs here and on a facial challenge. Right. All in all it has to have is a plainly legitimate scope, which it does in Alaska, for example. It is quite common for Indian members of one tried to live on the reservation of another. The preference applies quite often there. Right. What what your court the court has been worrying about is this kind of Maine to Arizona hypo that we identify some tribe in Maine that’s going to somehow get a preference. Well, that case has never happened that we’ve been able to find an able counsel on the other side has been able to find and I would submit on a facial challenge in a situation where it’s never applied, that would be very odd to strike down a congressional statute. I will say, though, that for the reasons I’ve said, I think it’s it is actually quite rational if the court disagreed, as you suggest. Sure. And the quickest answer to that, Your Honor, is that in my experience, or I should say my experience, talking with people who actually experience this, which is as close as I’ve gotten, is that the way this comes up most often actually is tribes, is individual Indians living on the on the reservation of another. And so they are building exactly that community. This is not some random tribe plucked from the ether that all of a sudden gets a preference invitation. Well, absolutely, Your Honor. And I am not here to say in fact, I think I’ve conceded that it would be extraordinarily difficult as applied challenge in the kinds of, again, I’m using as a shorthand domain to Arizona hypo. But I don’t think this is at all difficult on a facial challenge in the real world where this plays out because what’s happening in the world I remember we’re talking about not a single example of this appears in any of the briefing that I have seen. Okay. And so what’s happening in the real world is that individuals are are individual members are living on the reserve. Nations of another, and then the preference is going to that tribe.


Leah Litman And, you know, I think it’s possible he changed the direction of the argument and maybe even the outcome of the case.


Rebecca Nagle You know, the justice that looks like the most tuned out was Alito. There were long periods of time that he was kind of like looking at the ceiling.


Leah Litman I just want to note that this argument was the day after the midterms and these things could be related. But sorry to interrupt you, Rebecca.


Rebecca Nagle I wanted to back up because you guys are mentioned a couple of times that you and Gersh and Gordon was a really effective advocate, and there’s a little bit of a back story of how that happened. So in the early 2000, tribes came together. Tribal leaders came together with NCAI, the National Congress of American Indians, the Native American Rights Fund, NARF, and started what they called a tribal Supreme Court practice. And so what they realized is, you know, there’s this tradition of when you take a case to the Supreme Court, you use a Supreme Court litigator. It’s this very kind of elite status. But those people knew crap about federal indictment and were doing a horrible job representing tribal interests at the Supreme Court. And so tribal leaders got together and say, okay, we’re going to take folks who have this kind of practice of working at the Supreme Court and train them up in federal Indian law so they can do a good job of representing tribes. And in Gershengorn is one of those people. And so that there was a lot of work from a lot of people, decades, literally, of work that went into having an advocate that could appropriately even answer those questions, which I would also say that Kneedler, who representing the federal government, was not during the oral arguments, and I think that that was a frustration to see the federal government not put somebody who’s a little bit more knowledgeable up to defend such an important law.


Leah Litman Yeah. And I mean, Ian actually explicitly referenced the fact that he had talked to people with experiences under this statute while answering the questions, seemingly invoking the training that went into preparing him for this argument.


Rebecca Nagle Yeah, absolutely.


Leah Litman This has been walk through of what were a very long series of arguments about a case that involves many different legal issues. Rebecca Any other things take home our listeners should be aware of as we’re kind of awaiting the outcome in this case?


Rebecca Nagle Yeah. You know, I think that folks who are concerned about the integrity of the High Court, who are concerned about the integrity of our democracy, to be blunt, really need to follow this case. And I think it’s a test for the Supreme Court on a lot of different levels. I think it’s a test of whether or not they’ll follow the rules of civil procedure and kind of, you know what, like I think the last clip goes to is, you know, whether or not the plaintiffs have standing. I think it’s a test of whether or not the Supreme Court is really going to look at the facts on the ground and what actually happened in these cases. Or if you can bring a lawsuit where you kind of make stuff up to undo federal statutes. And I also think it’s a real test of precedent. You know, I mean, again, the foundation of federal Indian law goes back to the founding of the republic. And so if the Supreme Court here in 2022 feels like it can rewrite that, then what else can it not rewrite? And so, you know, I think it’s important for folks to pay attention. And I think it also raises a question of what kind of democracy do we want to have in this country? You know, Wednesday was a really heavy day for tribal leaders. I saw a lot of people crying. I saw the emotion was really heightened. And I think, you know, after everything that has been taken from indigenous nations, after everything that we’ve lost, that we’re still having to fight so hard, to hold on to what we still have and what is legally ours. You know, I think I think it’s an implication for our democracy more broadly, you know, is what kind of country do we want to live in where, you know, if the law can’t protect us. Who who can it protect?


Melissa Murray Rebecca, I don’t think we could have found a better note to end on. Thank you so much for joining us today.


Rebecca Nagle Thanks so much for having me.


Melissa Murray And listeners, if you want to catch the truly riveting back story of these cases, please check out Season two of Rebecca’s podcast, This Land, which is also produced by Crooked Media.


Melissa Murray [AD]


Leah Litman Okay. So the court also heard this week Health and Hospital Corporation of Marion County, Indiana, versus Talevski. A huge case about how certain federal laws and federal rights can be enforced and really whether they can be enforced at all. So the particular case is about statutes governing the treatment of patients in nursing homes. So under federal law, when a state accepts federal money for health care and nursing care programs, they must abide by certain conditions, including following certain procedures before prescribing the use of psycho pharmacologic drugs to patients in nursing homes. And they also have to follow certain procedures before they transfer or discharge patients from nursing homes.


Kate Shaw And the plaintiffs in this case claim that a nursing home administered psycho pharmacologic drugs to Mr. Talevski, which worsened his memory loss and awareness, and that they also transferred him to a facility that was hours further away from his family. Both things that pretty clearly violated the federal law, that establishes conditions on how states are supposed to run nursing homes if they accept federal funds to do that.


Melissa Murray So one issue in the case is whether spending clause statutes can be enforced by a section in 1983. And we’ve talked about section 1983 before. It’s a general civil rights statute enacted during reconstruction that allows you to sue state and local officials who violate your federal rights. Now, spending clause statutes are where the federal government offers states or private parties some pot of money, but attach a certain set of conditions on it, like, here’s some money, but if you take it, you have to use the money to set up health insurance for the needy or unemployment insurance or as here, how nursing homes have to be run. So again, they come with these prescribed kinds of conditions. And this is how a bunch of important federal, state cooperative programs are actually operated by offering federal money to the states who then set up the program and operate it in compliance with these federally prescribed conditions.


Kate Shaw And so the question in this case is if a state violates one of the conditions of that program, i.e., violates one of the conditions that attached to the federal grant, can a private party sue? So think about Medicaid provisions that require states to set up insurance systems that allow Medicaid patients to see qualified doctors of their choice. The question in this case is whether under, you know, all these spending programs, the beneficiaries of those programs can file federal suits when their rights are violated.


Melissa Murray So obviously, this is kind of technical, but it has enormous implications because if the private party can’t sue, then in practice there may not actually be a remedy if the state violates the conditions in a spending clause program. So this is back to one of the themes we highlighted for this term. Like, you have a right, but you may not have a remedy for that. Right. And that’s the case for a number of different reasons. The other possible remedy here is that the federal government just takes away all of the money if the state isn’t abiding by the conditions that were prescribed for receiving the money in the first place. And in practice. That rarely happens because if it did, the federal government wouldn’t just be hurting the state that’s violating the conditions of the program. They would also be hurting all of the beneficiaries of the program who the federal government wanted to protect by placing the conditions on the spending in the first place. So, if a state refuses to meet its obligation to offer insurance to groups that are eligible under Medicaid, for example, the consequence would be that a state will receive less money to provide health insurance to those same people, punishing the beneficiaries for the state’s failure to abide by its obligations to the federal government. And also, as Justice Sotomayor noted during the oral argument, neither the federal government nor the states can possibly investigate every violation of these conditions, which is why the court’s cases have assumed that Congress permits private enforcement under Section 1983. This particular statute requires the state to set up some kind of administrative remedies.


Leah Litman So the stakes of this case are really whether these patients have rights in practice. You know, as the respondent, the lawyer for the plaintiffs explained at the argument, you know, these plaintiffs tried the administrative processes. They were trying to do everything they could. You know, he said this family was crying out for help and using every mechanism at their disposal. They were turned down by medical malpractise attorneys because the claim wasn’t worth enough. They were told they couldn’t enforce the state administrative remedies without a state court order. And Section 1883 was, you know, the last resort, the thing they were desperately trying to use. Right, in order to help their father.


Melissa Murray So to the argument that Section 1983 says that every person who under a color of state law subjects another person to the deprivation of any rights, privileges or immunities secured by the Constitution and laws shall be liable. The suit kind of had this to say. Well, sure. It says a state is liable for depriving people of rights that exist under law. And sure, Congress puts conditions on spending programs in laws. But are spending programs really laws, Your Honor, and I’m not even kidding about that. That was the tenor of the argument. The state’s argument is essentially that Section 1983 says you can enforce laws, but spending clause statutes aren’t really laws, they’re contracts. And the statute makes no distinction between spending cost. Statutes and other statutes. And so the state argument continues, spending clause statutes, because their contracts and when section 1983 was enacted, there were background common law rules that only contract beneficiaries specified in the contract were able to sue. That means the beneficiaries here cannot sue. Wild.


Kate Shaw I know. That is the truly insane theory at the heart of this case and a few of the justices raised some questions, comments, concerns about this line of argument. So first, as Justice Sotomayor pointed out, the texture is pretty clear. A conditions in spending clause statutes are still rights secured by law and are therefore enforceable via Section 1983.


Leah Litman And Justice Jackson had just another banger of a question invoking the history of Section 1983, which, as most noted, is a reconstruction era law that displaced state remedies and state common law rules about who can sue and who can’t, precisely because those remedies and rules were insufficient to protect federal rights. So let’s play that clip here.


Clip Yes, but that was my question, too. So let’s let’s explore a little bit. I mean, I don’t understand your suggestion that an express cause of action, which I think we can all agree, is what 1983 is, that says that you can sue to vindicate individual rights that are created by the Constitution or laws of the United States. I don’t understand why that carries with it common law that preceded it under circumstances in which you couldn’t sue. So you seem to be suggesting that there isn’t a this isn’t a situation in which Congress was actually providing a cause of action where there wasn’t one before. Right. Which when you look at the actual history of 1983, that was precisely what Congress was doing. It was a part it 1983 of the Ku Klux Klan Act, where Congress had looked at the situation of states not giving forum, not giving a cause of action to people who were being terrorized. And instead of adopting and incorporating those principles in saying, here’s this new law and we’re going to incorporate the common law of excluding you from the court. In fact, Congress created the right in order to allow people to go to court. So while there might be situations in which we carry old will soil into our interpretation, I don’t understand how you can interpret a an express grant of authority to go to court to enforce rights created by law consistent with the opposite situation at common law and say we have to limit the current right because in common law you didn’t have that right.


Melissa Murray I just love her bringing her Palmetto High School History Prize winner Energy to this every single week, every single week.


Leah Litman Every single week. And she had this sick rejoinder when, you know, the lawyer for the state attempted to challenge this view.


Clip All right. So if it’s usually we only get to step in and look at common law or whatnot to assist in the interpretation of a statute. I think you agree that this is unambiguous, that Congress was giving people the right to enforce, you know, laws that gave them certain rights. And if you agree that that FINRA is a law, maybe you don’t. I do. Okay. Then it seems to me odd to suggest that we as a court can reinterpret the word law in Section 1983 to carve anything out.


Melissa Murray Then the whole colloquy kind of devolved into the lawyer trying to mansplain to Justice Jackson, a.k.a Palmetto High School’s History Prize winner. So let’s see how that went.


Clip An old professor of mine wrote a book in which he said, no answer is what the wrong question begets. Whether or not laws is supple enough to include 1983 or FINRA. That’s the wrong question. Respectfully, the right question is what are the what rights are secured by law within the meaning of 1983? And this Court has consistently held that when it comes to spending clause statutes, the common law of contracts gives us the clearest window into what, 1983 covered.


Melissa Murray Sir, you know.


Leah Litman Yes, free practice tip. Do not mansplain to Supreme Court justices. Do not tell the first black woman who’s on the Supreme Court. She is asking the wrong question. Especially when she is transparently and explicitly following up on a question that Justice Barrett had just asked you and you answered without fighting it. And also, she’s just filling your argument like she’s saying, you have no evidence that the Congress that wrote 1983 didn’t view spending clause statutes as laws when they are enacted into law. And I just cringe.


Melissa Murray Just sit down and enjoy your food and stop this.


Kate Shaw Okay. So a second question in the case is whether this particular spending clause statute governing nursing homes can be enforced via Section 1983. And the state seems to want to say it can’t be enforced because it’s not clear enough that it creates rights. But one big problem with this argument is that the challenge provisions literally say rights all over, and they are clearly about the individual rights of individuals in these facilities. And so then the state as well, there are these alternative remedies that plaintiffs have, but those are the state administrative remedies that the statute requires states to establish as a condition on the receipt of federal funds. And state administrative remedies generally are not sufficient to foreclose a remedy under Section 1983. That’s true as kind of an abstract principle. And the plaintiffs lawyers, I think, detailed recitation of the kind of Kafka esque efforts to seek administrative relief in this very case, I think illustrates why administrative remedies should not be deemed sufficient to foreclose a remedy under Section 1983. In this case.


Melissa Murray The federal government, though, had a theory that provoked some notable exchanges here. And this alternative theory runs something like this Many nursing facilities are private, and you couldn’t sue private nursing facilities under Section 1983 because they’re not acting under color of state law. So that means Congress wouldn’t think it’s weird not to be able to sue nursing homes that violate the conditions in Section 1983. And the lawyer for the federal government argued that most nursing homes were private, though maybe that’s not true in Indiana, where this case arose. But what could this theory, if you took it seriously, what would it mean? Well, one thing I think is very clear. It would seriously limit remedies under major civil rights statutes, including but not limited to Section 1983. So, for example, Concerned Alumni of Princeton Representative Justice Samuel Alito asked about Title nine and the breakdown of public and private institutions under the statute. And the thinking seems to be that if most schools that accept funds under Title nine are private, that would mean you couldn’t actually sue state schools for violating Title nine via Section 1983. So that just opens up a whole line of opportunities for people to commit sexual assaults in public schools.


Leah Litman So there’s also this sense that, as Justice Kagan pointed out, this theory isn’t asking about the tax structure or history of a law, but what Congress knew about them. Market participation, which seems unusual as a method for interpreting statutes like is this free market, textualism, Adam Smith, textualism like Milton Friedman and textualism. Look at what the invisible hand is telling you the statute means. And that led the lawyer for the solicitor general, the federal government, to say this, which honestly, if this doesn’t cause the court to reject the federal government’s position, I’m not sure what would.


Clip So. Justice Kagan The best analogy we’ve been able to come up with is that in I’m hesitant to say this, but in this court’s active cases, the court has sometimes you shouldn’t hesitate to say that, but the court has sometimes looked at what was the state of play when Congress had adopted what how would it have played out? You know, what were the the state rules of burglary in at the time it was adopted? And we think the analysis is, you know, similar here in that you’re looking at what would Congress have expected?


Leah Litman You know, Justice Kagan’s response underscores she just has zero fucks left to give. If you listen to the clip, you can hear the chief and Justice Thomas laughing uproariously and talking about how ludicrous it would be to import the courts armed career criminal cases into the spending clause context. Just because the unclear criminal act says they’re a disaster, they are a mess because they require justices to try to do a survey of state law about different crimes at the time that federal law, the Armed Career Criminal Act, was enacted. And it just doesn’t go well. And there’s no reason why they would want to or think they should replicate that inquiry under the spending clause anyways. The bottom line is this case is about enforcing the rights of millions of Americans who rely on spending programs. You know, Medicaid, for example, provides health care to 76 million people and is the primary funder of long term care in the United States. And this could affect other federal programs like CHIP, the Children’s Health Insurance Program, Temporary Assistance for Needy Families, and SNAP, the Supplemental Nutrition Assistance Program as well.


Kate Shaw We briefly also want to just touch on two administrative law cases the court heard last week. I mean, both are about the court’s authority to hear challenges to various agency actions. So we’ve got to Exxon versus FTC, which is about whether district courts have jurisdiction over constitutional challenges to the FTC’s structure and procedures, or whether Congress instead required those challenges to proceed in the courts of appeals and assess versus Cochrane, which is similarly about whether district courts have jurisdiction to hear cases about whether to enjoin ongoing S.E.C. administrative proceedings because of an alleged constitutional defect with the FCC. I think the thing to understand about these cases is that it seems very important to these petitioners that they can always and immediately go to a district court judge in Texas or Florida to seek. Whatever crazy relief you asking for without an excess of process either inside an agency or in the court of appeals, needs to happen right away in the district court because YOLO, that is kind of what these cases are about, whether you can immediately go to a favorable district court to try to get them to invalidate, you know, the administrative state, make more or less rather than first going through the agency’s own internal procedures.


Leah Litman And look, if stare decisis is for suckers, I guess these cases are about whether constitutional avoidance is for assholes as well as adjudicator efficiency. Because part of the reason we require people to first go through right in agencies, administrative processes is there might not be a reason to invalidate the agency process if, say, the agency concluded someone wasn’t liable under the statutes or regulations or ruled for them on a statutory ground without having to invalidate the entire agency. And aside from that, you know, Norm, of how a adjudication is supposed to work. This is also just kind of always the way administrative processes have worked for almost a century. At this point, you go through an agency, then you challenge the agency in the Court of Appeals via a petition for review. And now there are going to be two tracks of litigation, you know, in all cases involving agencies, one happening in the agency, and then the court of appeals, with another one challenging the constitutionality of the agency in a district court. It’s just another way of kind of gumming up the railroad and bogging down agencies. And it was just clear from this tenor of the argument that the justices were inviting the challengers, you know, how can we write to this opinion? So you win, but it’s not like opening the door to much.


Kate Shaw And, you know, on the surface, these cases are about where and using what process challenges challengers get to argue that entire statutory schemes are unconstitutional. And in these cases, the argument is that these agency administrative law judges are unlawfully insulated from presidential removal. And in addition, Lee, I think to your sort of reading the tenor of the argument that these challenges are likely to win in terms of where and when they can bring their claims. Some of the questions seem to have this very concerning embedded premise that, of course, the argument is going to be ultimately successful. Right. The chief in particular, I thought, was giving this off. And if agency algebras can’t be protected from political reprisal or removal because that excessively insulates them from presidential removal and political control, that is like a very technical sounding, but really important additional step toward further dismantling the administrative state. So good times, y’all.


Melissa Murray Another case that was heard last week. It’s also worth noting Mallory versus Norfolk Southern Railway Company. This is a personal jurisdiction case about who is subject to the authority of state courts so who you can sue as defendants. And the specific question here is whether a state can require a corporation to consent to jurisdiction in the state as a condition for doing business in the state. And we’re not going to recap this in depth because time is limited. And Leah is absolutely obsessed with Talevski the spending clause case. But I’m just going to say, let’s put a pin in Mallory so we can come back to it. It’s what Justice Ginsburg would have wanted.


Kate Shaw Another development. Trump appointee, Judge Mark Pittman, found Biden’s student loan relief program a mouthful vacated it nationwide. The case will next go to the Fifth Circuit. And Pittman is the same judge who ordered the Biden administration to continue the Trump administration’s remain in Mexico policy. In this opinion, Pittman relied on the court’s latest deregulatory, anti-democratic administration doctrinal weapon. The Major Questions Doctrine. And the plaintiffs in this case are people who are not even eligible for loan forgiveness or not eligible for the full loan forgiveness, but wannabe, that is to say, they are not in any way injured by the program. And yet the court somehow found that they had standing for reasons.


Melissa Murray Also worth noting that one of the plaintiffs here actually did receive some government assistance in the form of a $20,000 PPP loan so.


Kate Shaw I love that those are public. It’s just you just.


Melissa Murray Have to say, all of the filings in Texas district court sometimes like get me turned around, because there’s another Judge Pittman, Robert Pittman, who was the SB8 judge. I was like, I thought you were like, I thought you were a reasonable person.


Kate Shaw You’re a good Pittman. Yeah.


Melissa Murray There’s good Pittman and not good Pittman and they’re both inTexas.


Leah Litman And hopefully there’s about to be a Judge Ho and a very good Judge Ho. So, you know, we’ll, we’ll see whether that remains true. Listeners, it’s that time of year it is the annual Debating Society Get Together. Last week was the annual Federalist Society convention.


Melissa Murray And listeners as befitting a debating society that definitely and affirmatively does not take positions on issues and definitely is not partizan, political or ideological. The Federalist Society invited three Trump appointees Gorsuch, Kavanaugh and Barrett to be in attendance, as was their mentor on the bench. One Samuel Alito. So very, very neutral and nonpartisan fellows.


Leah Litman Good work and. The neutral nonpartizan nature of this get together continued when the very nonpartizan non-ideological author of the very nonpartizan non-ideological opinion overruling Roe versus Wade, that is Sam Alito, got a standing ovation when he walked on the stage at the Federalist Society, and he just looks so fucking pleased with himself as this was happening. Well.


Melissa Murray So he looked better? Like he affirmatively looked better?


Leah Litman He he affirmatively looked better. He was so happy not puffy.


Melissa Murray He looked he looked awful at the Phillies game.


Leah Litman Oh, yeah, for sure.


Kate Shaw And the group shot terrible.


Melissa Murray Terrible in the group shot. Again, we don’t know what’s going on with him, but he sort of perked up for this.


Kate Shaw Yeah some wind beneath his wings. All right. So let’s talk a little bit about his remarks. During those remarks, he said that he fondly recalled Federalist Society luncheons at a Chinese restaurant in the early days. He displayed a fortune cookie he said was from those lunches. He kept it all these years. He said it foretold that the group would spread across the nation and would continue until its work was no longer needed.


Melissa Murray I call bullshit on that fortune cookie. That fortune cookie did not say that. There’s no fucking way.


Kate Shaw He’s just like trust me. That’s what it says. I read it. I mean, we know he is extremely careful about the facts that he provides, so I am sure that that’s right.


I’d love for Justice Sotomayor to provide a photograph of said Fortune and says something else like You will overrule 50 years worth of precedent with absolutely no principle behind it. That’s what it really said.


Kate Shaw Really just getting started. Yeah. Yeah. Back to the speech. It was also reported by Lawrence Hurley, the great SCOTUS reporter for NBC now, and also Mark Sherman, another great legal journalist who’s with the AP, that there was a second standing ovation when Justice Alito’s opinion overruling Roe was praised by one of the speakers on the stage, Steven Markman, a former Michigan Supreme Court justice.


Leah Litman I mean, my question is like, does this cross an important line? You know, because Justice Alito said questioning the court’s legitimacy. Did is this praise by a team that you are invited to speak to your ideological fellow travelers, like literally standing up and cheering, overruling Roe? I just I want to know where the line is.


Melissa Murray And not to be outdone, Justice Barrett, or as some people on this podcast have called her Lady Safe Haven, also made an attempt at humor. It’s so nice to be back here among friends at this debating society where I get to ignore the pleas and voices of people whose lives and health and safety and families my ruling jeopardizes. This is all so hilarious.


Kate Shaw Uproarious it is.


Melissa Murray Is that kind of the vibe? Was that the vibe?


Kate Shaw I think so. And I’m wearing sequins.


Melissa Murray Oh yes. I noticed that too.


Leah Litman And I’m wearing sequins.


Melissa Murray I’m telling you, the red shoes was the first. The first up. I knew she had it in her like there was some sartorial flair there. The red shoes were the first tip off. The sequins were next. It’s only a matter of time before we get a cape robe. If she does come out with a cape robe, it will be the one thing I’m on board for from her.


Leah Litman Prop up the patriarchy, but make it fashion. I’m shallow.


Kate Shaw Okay, so earlier in the programing, Chief Judge William Pryor on the 11th Circuit decided to use the platform of this debating society. And this actually was really seriously so disturbing. My God. So he used this platform to attack journalists, including friends of the show and prior guests. Mark Joseph Stern from Slate. Dahlia Lithwick also from Slate. Elie Mystal of The Nation. Rick Hasen of UCLA. So, I mean, I guess we should, because it’s important for people to hear this stuff, but it turns my stomach. But let’s play those clips here.


Clip And no less an authority than Mark Joseph Stern. It really is their lesson authority. Has explained. Federal Federalist Society judges tend to higher Federalist Society clients, and the conservative legal movement’s radicalization machine produces an endless line of young lawyers, even more extreme than their predecessors. As the writers at Slate. Dahlia Lithwick and Rick Hasen explain, the Federalist Society has, quote, styled itself a debating society long after it ceased being to be anything of the sort. And as intellectual luminary Elie Mystal. Her son. Usually, Fed stock is able to operate in relative anonymity, quietly working to destroy the equal protection rights of women and minorities.


Kate Shaw So if I understand this correctly, he is literally making fun of these journalists for deigning to question whether the Federalist Society is a debating society or just a debating society. And he is doing that while illustrating that the Federalist Society is most certainly not just a debating society. Right. This is a judge calling out private citizens and journalists by name and really reinforcing the idea that.


Melissa Murray Also the same judge who hired Justice Thomas and Ginni’s Thomas clerk, who may or may not have said something racist while she worked for Turning Point USA. So we’ve referenced him before.


Kate Shaw The very same. Oh yeah


Melissa Murray Okay. Just just checking that just checking the the record.


Kate Shaw Yeah, that’s Judge Pryor. And and, you know, this is the backdrop. This is earlier in the day and probably throughout the day. And certainly at the big gala dinner that night, they’re celebrating their win in Dobbs and also saying it’s inappropriate for journalists to point out that they’re celebrating their win in Dobbs and elsewhere and that they have an agenda and do take positions. It was pretty astonishing.


Leah Litman You know, also on this, the Federalist Society is just a debating society beat. Nina TOTENBERG, another guest on the podcast, had this interview with Professor Stephen Calabrese, one of the founders of the Federalist Society, in which Professor Calabrese told her that the Federal Society’s Board of directors voted that he ask any journalist he talks to not to identify himself as either a co-founder of the federal society or cochairman of the board of directors. And that’s because of his work, you know, against the independent state legislature theory or perhaps his recent remarks indicating that he believes reparations are constitutional. I mean, it’s just, you know, this is a debating society ruling that you can’t take the anti-coup position in a debate that like if you say voters in elections should decide elections, you can’t be in the debating society like this seems like a position to me. Just a little, little much here.


Kate Shaw Yeah. I mean, I think that the interview topic was more versus Harper, in which Steve, together with Akhil and Vicki Amar, filed an amicus brief. And I do have to say props to Steve, who was a friend, and it was my constitutional law professor for saying about, you know, his fellow travelers in the federal society and this bizarre constraint. It’s ridiculous. It’s absolutely ridiculous. So he said this and know, like, you know, he filed the brief. He filed I was very curious about sort of what that revealed about the current status of the relationship between Steve and the federal society. I have no idea. But, you know.


Melissa Murray I love internecine warfare. I love I mean, it’s like Marie Kondo. I love mess. Let’s do it.


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Melissa Murray And as always, Strict Scrutiny is a Crooked Media production hosted and executive produced by me, Melissa Murray, Leah Litman, and Kate Shaw. It’s produced and edited by Melody Rowell with Audio Engineering by Kyle Seglin, Music by Eddie Cooper, production support from Michael Martinez, Sandy Girard and Ari Schwartz, and digital support from Amelia Montooth. Thanks for listening.