You're listening to Bloomberg Law with June Grasso from Bloomberg Radio. In some ways, the cases of the Faithless Electors may have been the most entertaining of Supreme Court cases this term. It started oral arguments with Justice Clarence Thomas wondering if an elector could vote for a character from the Lord
of the Rings. The elector who had promised to vote for the winning candidate could suddenly say, you know, I'm going to vote for Froto Wagons, and that's I really like Froto Wagons, and ended with a decision by Justice Elena Kagan that told the history of presidential electors. Alexander
Hamilton's my name is Alexander Hamilton. There's a million things I haven't done just to just including references to the Broadway hit Hamilton's and the TV show v The Court rule that's states can require members of the Electoral College to vote for the presidential candidate who won the statewide balloting.
Although a faithless elector has never affected the outcome of a presidential election, the unanimous decisions are important in giving a measure of predictability to our nation's complex election system. Joining me is elections law expert Richard Braffald, a professor Columbia Law School, which does this decision seem to take care of the concerns that were raised by the justices
during the oral arguments. I think the justices, many of them, were concerned about potential chaos if the states could not make sure that electors would cast the votes that they were elected to cast. There is the constitutional argument that the original intent of the framers would actually have the electors used their judgment. But our practice since almost the beginning of the country has been for the electors to
vote the positions that they were chosen to take. Presidential elections are in practice popular elections, even if we still have to use the electoral college. I think the justices were showing that made sense to have the states be able to require the electors to cast the votes that they were chosen to cast in the majority opinion. How did Elena kaig In frame it? The Constitution doesn't address this. Did she do a constitutional argument, did she do a
practical argument? She really did a combination of classical text and history, text, history and practice. I mean, the text doesn't really address this. The text basically directs the states to select the electors. It doesn't say anything about any rights of the electors might have, And then she traces the history which shows that really from maybe from sevent on, it was expected that electors would vote for the person
they were chosen to vote for. So I think she basically said that this was something that the states were free to do. There were no counter precedents. There was one Supreme Court Presidents in the nineteen fifties which upheld the authority of states to require the electors to take pledges that they would vote the way they were chosen to vote, but there was no punishment in that case.
So I think she basically had text practice or history, and maybe a sense of in effect, we have reached the stage now where the electors are really a part of the process of popular election. And in her opinion, she referenced the HBO show Veep as well as the Broadway musical Hamilton's Correct Yes, So she seemed to have a little bit of fun with it, right. She is a very lively writer. She often puts in colloquial things
popular things. She is a lively and readable writer, and sometimes find myself laughing out loud when I read something of her. She had an opinion recently dealing with the power of Congress to limit the president to just cause removal, which the court struck down in that case. And one of the arguments in the majority in that case was that this had never been done before, or it was
very rarely done before. And she said that really shouldn't matter the necessary improper clauses, not the rinse and repeat clause. And she adds a lot of fairly colloquial, casual funny things. There are more faithless electors in the sixteen presidential election than ever before in history. But how much impact will this decision really have going forward? As you point out, I mean, the pace of electors are very rare. If
you go back for the preceding center. I was looking at this between nineteen sixteen and twenty twelves, there were exactly nine faithless electors, and that was in twenty five elections, and there were five electors or more in every one of those elections. So it's a very rare thing. There were a sizeable number in sixteen, and I think it reflected a lot of the discontent in the country with
the choices that people had. It's highly unlikely we were going to have a constitution with crisis due to faith with electors. But I think the value is more symbolic than anything else. But it does kind of confirm the idea that this is a popular election in Italy. It's a popular election by state, which is why we can still get a gap between the national popular vote and the national electoral vote. The president is popular upon a
state by state basis. So it is that kind of a confirmation that whatever the intentions of the Framers were in seven, we have moved in a more small d democratic direction. Advocates for allowing faith as electors to so called go rogue said it would be a back doorway for states to add qualifications for presidential candidates, such as voting only for those who release taxes. Did that come
up in the opinions? Justice Kagan takes the position that since the states have the power to write the rules for the selection of the electors, they can also imposed conditions. But then she dropped the footnotes and says what the states can't do is imposed conditions that would violate another constitutional norm, or adding a new qualification to the president. You could read that as aimed at knocking out the idea that the States could for imposed the requirement of
its closed as a qualification for being president. That's where to the fault of Columbia Law School. The Subreme Court delivered a ruling in a criminal case that could have vast implications for Oklahoma's criminal and civil jurisdiction, as well as tribal sovereignty in the eastern half of that state. Justice Neil gorsts joined the court's four liberal appointees in a five to four decision that found that Congress had granted the Creek Nation a reservation and the United States
had to keep its promises. In the majority opinion, Gorstge wrote, because Congress has not said otherwise, we hold the government to its word. Joining me is Jordan Reuben Bloomberg Law Legal Editor. This case is about Indian Land in Oklahoma, but it's actually a criminal case. Explain how it went from criminal case to this broader case. So the case involves a man named Jim c mcgurt, and he's a
member of the Seminole Nation. So he was convicted of some very serious crimes and was serving a life sentence in state prison. However, he raised an argument on appeal, saying that because he is an Indian and his crime took place in what he said was Indian country, that the state actually didn't have jurisdiction to prosecute him, because jurisdiction for such a prosecution would only fall to the
federal government under federal law. And so that wind up raising the question in turn of whether where he actually committed the crime was in fact, quote unquote Indian country. And so that's what brought into question the status of the Creek Reservation, which is where mcgret committed his crime, and the question of whether the Creek Reservation still exists
today from its nineteenth century treaty origins. So the state said it wasn't legally a reservation in the first place, and even if it was, Congress has since taken away that status, explained the state's argument, right, So there's this threshold question of whether there's even a reservation in the first place, and then if there was, whether Congress has
done something called disestablishing the reservation. It's a strict test where if a state argues that a reservation has been essentially undone, there needs to be a clear statement from Congress showing that that happened. And so what happened in this case, the majority opinion, written by Justice Gorsich said, in the first instance, it was obvious that the Creek Reservation was a reservation in the first place. It even used the word reservation in the treaty to discuss it.
And Gorst wound up going to say in the opinion that Congress has not clearly disestablished the reservation. Even if the government did, at various points in history actually want the reservation to be disestablished, the government was never actually successful in doing that, and so technically, as a legal matter, the reservations still exists today. Corse, it said, the government's dire warnings are just that, and not a license for us to disregard the law. So tell us about the
government's dire warnings. So the government was warning that Ismagert's argument is correct, that him and a bunch of other people who are convicted under state law in state court will wind up having their convictions overturned. And so there were big consequences as far as the state was concerned
when it comes to criminal law. And then even beyond that, if it turns out that the Creek Reservation persists today, and if in turn, other reservations in the eastern half of the state also are still reservations then that could have the consequences for civil regulatory and tax enforcement as well. So the state's argument even went beyond the criminal sphere and into civil tax and regulatory as well. During the argument that justices were asking questions about how this would
affect adoptions and business disputes. Do we know how this will affect that The ruling here focused on the criminal side, there was it actually an interesting statement that came out after the ruling, a joint statement from the state and also the tribes in the eastern half of the state talking about how they were going to work together going forward to sort out jurisdictional issues and enforce public safety.
So it was an interesting thing, not the sort of thing that you see every day in terms of two sides of a dispute coming out with a joint statement together after the case. Of course, the case was mcgret against Oklahoma, but you had the Creek Nation UH and other tribal interests supporting McGirt at the High Court. So this statement that came out after was from Oklahoma and
then the tribes. Of course McGirt and other state defendants who are convicted in state court could be retried in federal court, which was an argument that mcgart and his supporters were making as to why there wouldn't really be this wide disruption that the state was claiming because people could just be retried in a different court. It's not like they would just be let loose on the streets forever. There might be statute of limitations problems with some of
the cases, right. There could definitely be procedural obstacles to be trying some defendants, and there could be practical hurdles too. You know, if it's a case from very long ago, witnesses could be dead, their memories could be faded, and so even if legally a lot of these defendants could simply be retried as a practical matter, that won't necessarily be the case. But the point in Gorsuch's opinion was those consequences be them as they may. That's really not
the issue in the case. The issue is the discrete legal question of whether the reservation has been disestablished, and the answer to that question that the majority said it was clearly no. The reservation still stands today. So does this mean that any Indian who was convicted by the state of an offense on reservation land can now apply to have that reversed. So, as always happens in these cases, there may be further litigation testing the limits of it.
But they're certainly going to be the challenges brought, and so that's something that the state is we're it about.
And even the defense conceded that there certainly could be convictions that are challenged, they argue over really how many are in question, And even though the state was warning that a lot of convictions are going to wind up being overturned, of the state very may well wind up challenging those convictions being overturned now that the litigation is on sort of a new terrain, So as always, it's sort of an open question about exactly how many people
are affected. But certainly there are going to be cases that wind up getting overturned as a result of this ruling. And then the question, as we're discussing, is whether they do wind up getting retried in federal court or what So does McGirt get released now or do they does it have to go back to a lower court. So the question is going to wind up going back and there will be a question of whether he winds up
getting retried on the the federal level. I don't think it's going to be a situation of him just getting released out onto the street. And even if he even if he did, the federal government may well will be able to pick him up right there. That's something that does happen sometimes when there's transfer between jurisdictions. So as mcgarrett himself, even though he won the case, he very he very may well wind up still spending the rest
of his life in prison anyway. And Chief Justice John Roberts, very busy today wrote the discent what was his descent about? This descent mirror mirrored the state's concerns in a lot of ways, worrying about the consequences of the decision, saying that the majority really gave it short shrift and wasn't
taking the state's concerns seriously enough. And as to the legal question, Roberts also agreed with the State that the government's actions that it was taken against the reservation and the Creek Nation really amounted to the Creek Reservation not legally existing anymore. So, the descent and the majority really both disagreed as to the legal question and as to the consequences claim as well. Now I want to ask a fact question because I've read that this means that
nearly half of Oklahoma, eastern half is reservation land. What is it now? I mean, do the reservations constitute that part of the land. So a little bit of background explanation is necessary to explain that. So, the Creek Nation, which was the land that was an issue in this case, is one of the five tribes that were marched west on the Trail of Tiers back in the eighteen thirties.
And so the Creek, as well as for other tribes which had similar arrangements, all had treaties with the government and they wound up in the eastern part of the state. And so the government's argument here the government was concerned that a wind for the Creek would then lead to similar findings as to those other tribes as well, saying that their reservations also still exists. So it's sort of
a two step process. As for now, it's technically after this decision, only the Creek reservation, which has still been firmed by the court as still being quote unquote Indian land, as to the other half. As to the remaining four of those tribes. Certainly the logic of that may well apply to that case, but as a technical matter, there could still potentially be further litigation or legislation or further
disputes as to the exact status of those lands. But certainly the implication of it is essentially that the eastern half of Oklahoma would be technically still a reservation if that same logic from today's opinion is applied to the rest of the tribes as well as it was applied
to the Creek. Did the justices make a decision in the other case criminal case Sharply Murphy and so last term the justices tried to decide this case, but it was a case where Justice course which was recused because because it came from the Tenth Circuit Court of Appeals, where he sat before reaching the Supreme Court, so he
recused himself from that one. And the court wound up deadlocking presumably four to four on the case because they couldn't reach a decision, And so that case was on hold while the Jim c. Mcgret case was playing out. And so now, as happens often when there's a Supreme Court ruling and other decisions are sort of on hold. Now that mcgret won, the Supreme Court issued essentially a summary decision saying that Murphy wins too, and sent his
case back as well. In that case, that Murphy had actually one prior so it was just affirming the previous ruling for him, as opposed to this case where mcgret lost at the previous court and today's decision wind up reversing in favor of mcgret. So now let's sprawden the discussion and talk a little bit about the Chief because we learned that the Chief actually had a fall and he was hospitalized overnight on Father's Day. Believe it was.
That's right. We wounded up learning this week that Chief Justice Roberts did fall and did stay in the hospital overnight on Father's Day. But it's something that the Court did not wind up announcing and only really wound up confirming in response to a media inquiry from the Washington Post this week. And so this was something that was not full to us at the time and only really came out because someone was poking around and got a
tip about it and asked the court about it. He said two prior seizures that if there's never been a clear diagnosis of I don't think, but that's right too that we know of anyway, and um, technically doctors have said that they don't know the exact cause of them. And really, what the shows is that not just the chiefs, but a lot of the courts members don't necessarily readily share their health information, and it does turn into somewhat
of a transparency issue. Obviously, the public is well aware of Justice Ginsburg's serial battles against cancer, but that's really because Justice Ginsberg herself has been forthcoming about that information. And so it does seem like the justices are dealing with this on an individual basis, and there's not necessarily a policy at the Court of how each justice has to deal with disclosing their health information to the public,
no matter how serious it is. Chief Justice Roberts is fond of saying that the Court is the most transparent of all the branches of government's right so exactly so when it comes to something like the justice's health information, that might not be the case in terms of the Court being the most transparent, at least, as this recent incident shows with Chief Justice Roberts, which if no one had ever inquired from the Court perhaps we we never would have known about it, and so I should probably
point out that there doesn't seem to be any lingering health issue that we know of. Obviously, it doesn't seem to be on par with Justice Ginsberg's very serious cancer issues, which seems to have resolved as well. But it's more a matter of the public being kept in the dark about this information. That's Jordan Reuben Senberg Law Legal Editor. I'm June Grosso and this is Bienberg m HM.