This is Bloomberg Law with June Brusso from Bloomberg Radio.
The legal fight over the abortion pill goes on. We believe that we were prevailing the courts. We believe that the law is on our side, and we're going to continue to fight for millions of women across the country. That's White House Press Secretary Kareem Jean Pierre.
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The controversial case over mifipristone returned to the Fifth Circuit Court of Appeals after the Supreme Court last Friday blocked to Texas judges restrictions from taking effect, keeping the drug fully available while the legal fight moves forward. My guest is constitutional law expert Stephen Vladik, a professor at the University of Texas School of Law. Does the Supreme Court's decision vindicate the Court's majority opinion in Dobbs, saying that
questions about abortion would be left to the political process. Although, when we'll get to this in a moment, the justice who wrote that opinion, Samuel Alito, dissented here. Strangely enough, I.
Don't really think that's a great framing. Is only because I think it reads a lot more into this unsigned, unexplained order than is reasonable under the circumstances. I think it'll be easier to say that if the Court ultimately ends up taking this case on the merits and ends up reversing Judge Kasmerican siding with the federal government. All that I m Friday's order really underscores is that there was a majority of justices who bought sort of the
irreparable harm argument. Who bought that. You know, it really would cause chaos and disruption if Judge Chasmerics order were allowed to go into effect while the case works as way through the court. In that respect, student actually strikes me as something of an old school emergency intervention from the justices, where it really is sort of purely about the equities and not necessarily reflective of you on the merits.
So let's talk about that dissent by Alito. In your newsletter, you discussed three claims Elito made in his descent. First, his bitter rant about the shadow docket, where he cachede on Justices Elena Kaig and Sonya Soto Mayor and Amy Cony Barrett.
Justice Alito has been very sensitive to criticisms of the shadow docket. This is not the first time he gave a whole speech at Notre Dame Law School in September of twenty twenty one, right in the middle of the first big public backlash after the Court's ruling in the
Texas six week abortion ban case. You know, I think he has this sense that those who criticize the Court's increased use of emergency orders of unsigned, unexplained rulings in recent years to change the status quo are really objected to intervention as such, as opposed to a more nuanced story about when the Court's intervening and why, and so from his perspective, you know, when justices who have been critical of prior intervention are nevertheless voting to intervene, as
the majority did on Friday night, you know, to him, that's hypocrisy. I think that's ironic, and at least two respects. First, he uses that hypocrisy to justify hypocrisy of his own. I mean, he expressly says, you know, I didn't agree with them then, but if they're going to do it, then I'm going to do what they did. But the second is I think that just really really sort of marginalizes what the criticisms of the Shato docket have been, which is not that the court is ever intervening, right.
I mean, any appellate court is going to have circumstances where it has to intervene early in the case to preserve the status quo pending appeal. That's not new, that's
not exceptional. Rather, the criticisms, at least from people like me, have been that the way the Court has been using this power in the last five or six years has been in defiance of historical norms for when the court should intervene, have been in defiance of the procedural and jurisdictional rules governing when the court can should intervene, and worst of all, have been inconsistent in when the Court has intervened in ways that really don't map on to
any coherent, neutral legal principle so much as it maps on to the partisan valance of the dispute. That's the criticism. Now, folks may not agree with that criticism.
That's fine.
But I think what's frustrating about Alito's dissent is that he's basically knocking down a straw man when he says, you know, you guys have been opposed to intervention, and yet you're doing it here like that's not what the conversation has been.
He also says that the Biden administration has unclean hands, which is a legal term.
Explain that sort of reinforcing I think the view of
Friday's intervention that this was really about the equities. When a court is asked to intervene at an early stage to either grant a stay or list to stay, what is really supposed to do is balance the equities, which is, you know, who would be harmed more by the two competing rules we could hand down and by the two competing sort of universes we could create while this case makes its way through the courts, and as an exercise of equitable power, it is by the idea that like
parties that are acting badly should not be entitled to release. So one of his arguments for why the FDA should not have been entitled to his day is because he believes he maintains that the irreparable harm that the government said was going to result from allowing Chasmerics ruling to go into effects was at least to some degree created by the government through its litigation behavior. In the other myth Ofpristone case, the one that's pending in the Eastern
District of Washington and Spokane. And you know what's remarkable about that claim, June is, First, I think there are any number of ways in which Judge Chasmerics ruling would have creative chaos all on his own, And he doesn't dispute that. He just suggests that the government's argument was about chaos as between the conflict between Chasmartics ruling and the Spokane ruling. But second, the things he accuses the government of doing are factually incorrect. He says the government
did not appeal the Spokane ruling. Well, that time hasn't run yet. The government still has lots of time to appeal, and I suspective will. He said the government opposed intervention by seven read states in that case, implying that like the government tries to prevent them from appealing that decision. He doesn't tell the reader that actually the intervention request had nothing to do with an appeal and actually came
even before the injunction was issued in that case. So it's a remarkable series of claims, Dune, because it's not just that they are in some respects hypocritical and inconsistent with his own prior behavior, but he is based in his arguments on students that are just not true, and indeed on points that have plenty of receipts that can be deployed to push back against them.
So what hit me the most when I read this, What I found astonishing is this sentence. The government has not dispelled legitimate doubts that it would even obey an unfavorable order in these cases, much less that it would choose to take enforcement actions to which it has strong objection. I don't know where he got that idea that the Biden administration was not going to obey a court order.
Well, I mean, I fear that he got that from right wing media. But let's back up the second right. I mean, so the unclean hands argument is why he said the FBA was not enteled to emergency release. But there was another party in this case, Danko Laboratories, one of the two US sponsors or distributors of mister Pristone. And Danko said, you know, hey, we're not the government. We're just a company with the bottom line, and if you allow Chasmeric's rule and to go into effect, our
bottom line is going to take a huge hit. And Alito just sort of waves his hands and says, well, you know, the Biden administration is not going to prosecute you for basically for violating Judge Chasmeric's order. And you know, dude, first, that's a remarkable position to take in the abstract that you know, a company is not harmed because it might not be prosecuted for breaking the law. Like, hey, company,
break the law, You'll be fine. Even if Danko were inclined to take such a cavalier approach to the rule of law. Danko has counter parties, Danko has insurers, Danko has clients who might not be similarly disposed towards the law. And so you know, even in the abstract, it's a remarkable claim. But again, the factual basis for it is
just completely missing. So, you know, let's talk about who has encouraged the Biden administration to ignore an adverse rule in this case, Senator Wyden from Oregon, Congresswoman Ocasio Cortes from New York, Congresswoman Nancy Mace, a Republican, we might add, members of Congress. There is not only no one in the executive branch who has even hinted that the Biden
administration would decline to comply. But in response to those congressional statements, the White House Press secretary specifically said, we are not listening to them. We are going to comply. So when Justice Alito just says, you know, the government has done nothing to dispel legitimate doubts, what else could the government do and where are those doubts coming from? And I think you know what's telling about that passage in the opinion is that he doesn't cite any sources.
There's no authority provided in support of that statement. More fundamentally, I mean, June, let's just be clear, it has been, by almost anyone's reckoning, one hundred and sixty two years since the last time a president the clients to comply with a federal court order, and that was President Lincoln in the middle of the Civil War as part of
the fight with Chief Justice Roger Brooks. Tawny, and I think it's remarkable not only because it was a legally irrelevant argument for Justice Alitos to make, but because the only possible factual reason to make that claim is because you are crediting conspiracy theorists in right wing media more than your credit in the official spokesperson of the Executive Branch.
The Fifth Circuit is going to hear arguments on May seventeenth, but it is the most conservative of the circuits, and is it likely to change its opinion, which it expressed pretty thoroughly in a forty two page decision.
I think it might. So let's be clear the panel that only stayed part of the Judge Kasmaric ruler. First it was divided two to one, and second June, that won't be the same panel that here's the government and Danko's appeals on May seventeenth, So you know, first it's going to be different judges who are going to hear this appeal. Second, these judges now have the benefit of knowing that there's a majority of Supreme Court justices who are not willing to let Judge Kasmeric's order, even as
modified by the Fifth Circuit, go into effect. And third, as folks have had time to react to Judge Chasmeric's order, I mean it was keep in mind, is even today less than three weeks old, and as even conservative commentators have chanced to weigh in, I think there's been a developing consensus that there are serious problems with the plaintiffs
in this case is standing. So that whatever folks think of mifipristone or the FDA or any of the administrative law arguments that Judge Chasmeric relied upon in his order. You know, this case has an enormous obstacle in the form of the planet's lack of stand in. So I don't think it is by any means a foregone conclusion that the Fifth Circuit is going to ultimate affirmed Judge Kasmeric. And if it does, I think all that will do is kee this up to go back to the Supreme Court.
But if it doesn't, if you get a panel on the Fifth Circus that said, actually, we don't think these planets have stand in and so we reverse du Kasmeric and we dismissed this case. I'm sure the planeffs will go to the Supreme Court and ask the Supreme Court
to review that decision. I'm not sure the Supreme Court will agree, and that I think Stuon is where we might see, you know, more of the point you made at the top, more of the Court recommitted to the idea that it really wants to leave the question of abortion access to the democratic process.
Steve, I want to turn now to another topic. Senator Dick Durbin, the chair of the Senate Judiciary Committee, had invited Chief Justice John Roberts to testify before the committee regarding Supreme Court ethics. That's in light of recent revelations that Justice Clarence Thomas had gone on luxury vacations paid for by a billionaire Republican donor for decades, and also that money changed hands between the two in this sale
of property. The Chief Justice declined the invitation. It was no surprise that Roberts refused to testify, and he cited separation of powers concerns and the importance of preserving judicial independence. Do you think that was the only move for him?
Yes, If I'm Chief Justice Roberts, I am not voluntarily agreeing to set a precedent wherein the Chief Justice can be called before Congress anytime you know enough members of Congress think that a particular justice has acted inappropriately on the foot side, Right, a sort of an invitation to testify is about the most milk toast bin that Congress
could have done. Right, there are far more aggressive things Congress could do going forward, where maybe the Chief Justice couldn't just politely decline, And I think this is where I think the story really goes next, which is, you know, we're not all going to agree on which rules should bind the Supreme Court's justices. We're not even all going to agree on whether particular behavior by particular justices violates
those rules. But we all ought to at least have common cause on the point that there should be some rules that bind the Supreme Court and that bind the justices, and that those rules ought to have some meaningful peace
behind them. And this is where I think, you know, the conversation ought to go next, which is, how do we create a mechanism where the justices are impelled through political pressure, through public pressure, through other mechanisms to comply with the rules as they exist, and not just to take such applause they approach And to me, I mean, there's a bill that was introduced this week by Maine Senator and Gus Kingdon by Alaska Center, at least in Murkowski,
I think this is a pretty good job of actually splitting the difference. It doesn't dictate a code of conduct. It says, hey, Supreme Court, you must adopt a formal code of conduct, and you must create some mechanism for overseeing compliance with that code of conduct, and whenever there is a dispute over compliance, you must report back to us on what the dispute was. That seems to me
not remotely inconsistent with the separation of powers. You know, Congress can say, hey, we're going to give you ten million dollars, but we're going to tell you what's spend it on, and you've got to report back to us on how you spent it. That's how the budget works. And then jun then we have the real conversation, which is whether any of these cases rise to the level of allowing Congress to exercise the clear constitutional authority it has to act against justices who misbehave, which is the
impeachment powers. I don't think we're there, but I think we also ought to be willing to accept that for the impeachment power to be meaningful, for Congress to have any real opportunity to wield it as a check on the justices, there has to be some mechanism by which Congress can be made aware of violations of whatever the rules are.
I didn't find Robert's refusal so surprising. What I did find a little surprising was this statement signed by all nine Justices vowing to follow foundational ethics, principles and practice, is because it suggests that everything's fine. They don't have any need for a formal code of conduct, despite what we've been hearing about for weeks.
And I think what this goes back to is, I mean something we talk about a lot in law schools, the difference between having rules and having an effective means of enforcing them. Right, you can have the finest rules that any two humans could devise, and they would be pretty pointless if nothing happened when they were violated. And so I think the question is not whether the Supreme Court should have a code of conduct. Clearly the answer
is yes. The Justices themselves even seem willing to bind themselves to at least these loose principles that achieve justice, Roberts attached to his letter. The question is what's going to happen if and when those principles are violated? And you know, I think the answer has to be for the sake of the separation of powers more than nothing.
And I'm on the side that thinks that there would be separation of powers problems if Congress claims for itself the power to discipline justices who violate the rules, or Congress gave someone other than the Supreme Court the power
to oversee compliance with these rules. At the same time, the Constitution gives Congress the power to impeach judges and justices entirely for those cases in which those judges and justices are not engaging in what Article three calls quote good behavior unquotes, and so it seems like it vindicates the separation of powers rather than interfering with them, for Congress to create a mechanism whereby the Court will police itself, but it will also report to Congress on its efforts.
The Chief Justice also declined to investigate Clarence Thomas's ethical challenges, shall we say, but he referred to Congress's request for the investigation to the Judicial Conference of the United States. Do they do investigations or do they make policy?
I mean a little bit of both. So the Judicial Conference has at least some authority under a sort of a nineteen sixties era federal statute, to engage in some investigative functions, but that's almost always been understood to be focused at the lower courts that you know, the Judicial Conference comes in when there's some investigation needed of a
legend misconduct by lower court judges. We're about to see this in the context of the effort by the Chief Judge of the Federal Circuit to remove one of her colleagues.
The Judicial Conference is not set up at all to handle investigations of the court, and that I think is why the King Murkowski Bill is probably a much better alternative to what Chief Judge Roberts is proposing, Because the King Murkowski Bill says, hey, Supreme Court, you know you you tell us what your rules are, and you create a mechanism for supervising internally whether your rules are being followed, and you report to us when they're not right. That,
to me is exactly how you split the difference. So that in those cases where the rules are not being followed, we don't expect the courts that discipline itself, but we do expect the courts to at least identify the problems so that if Congress, the body that has the conscertorsmal authority to remove justices who fail to engage in good behavior, wants to emphacize that power, it has been means to do so.
It's always so great to have you on the show, Steve, thanks so much. That's Professor Steven Vladika the University of Texas School of Law. The Supreme Court justices seemed torn about whether Congress intended to allow individuals to sue American Indian tribes in bankruptcy disputes. The Court has long applied a clear statement rule when Congress means to waive tribal
sovereign immunity. Chief Justice John Roberts noted that Congress has never waived sovereign immunity without expressly using the term tribe.
Well, but I mean, the biggest hurdle I think you have to get over is that they everywhere else they use the word tribe and they didn't hear and they've got a long list of other type of governmental agencies. I mean, you don't have to be in the Big four or Big five because they're I don't know. You must accounted them like at least a dozen and surely they're in the top dozen. So this is the only instance where they haven't used the word tribe or Indian when they meant to include them.
Right, But the Court has also emphasized that lawmakers don't have to use specific or magic words to waive tribal sovereign immunity. Here are Justices Elena Kagan and Amy Cony Barrett, and I think that the difficulty for you is, aren't you really making it into a magic or its requirement.
It's hard for me to say how that would be a hard question for the United States or for a state.
So it sounds to me like you're carving out an extra special, super super clear weg My guest is Ezra Rasser, a professor at the American University Washington College of Law. Ezra tell us about the facts in this case, why it came to the Supreme Court.
I mean, there's been a series of cases where people challenging the power of tribes want to undercut tribal sovereign unity. So this is just another in the theories. I think the thing that's unique, of course, on this one is that it got taken preserved, and it got taken so quickly after the Court had reaffirmed in Bay Mills that
sovereign immunity still exists. And so I think it's less about the particulars of this case and more about the fact that the Court continues to take these cases and threaten to get rid of sovereign immunity.
Do the facts here make the Indian tribe look bad because it involves payday loans and a man who tried to commit suicide because he was being pressured.
Yeah, I mean the facts are terrible for sure, and the way in which tribes have jumped into some of these what can only be thought of as bad businesses do look terrible. But as the oral argument made clear, that isn't the real issue in the case. So, yes, they're bad facts, but the question is whether there's been abrogation of tribal sovereign immunity.
Explain what exactly is tribal sovereign immunity.
So the basic idea here is that they're a sovereign and you can't just sue the sovereign, meaning the government, unless the government gives you permission to it, and this
is true for all types of government. For a very long time, the United States government made it hard for people that were harmed by the United States that sue them, and so people would do petitions to Congress to get recourse if the government had harmed them or they'd suffered some loss, and so tribes have that sovereign immunity as well.
And the question is if Congress, you know, in passing the Bankruptcy Act, did they abrogate sovereign immunity with regard to that area of law practice, right, But it is a standard part of what being a government means is you have this immunity.
I read that this case is one of the simplest the justices here this year because it involves no constitutional questions and the interpretation of a single phrase of a single statutory provision. It didn't sound that simple.
Yeah, I think the challenge I would actually agree that it's simple, but for a different reason. So the simple part about it is that many times the Court has been asked what counts as waiver of sovereign immunity, and the answer has always consistently been when Congress is clear, if there's an express abrogation, then yes, the rights are lost. But if there's not express abrogation of a tribal sovereign right,
then it continues. And so here there's been no express abrogation, meaning Congress has not said we are taking away tribes' rights. Therefore the rights should still exist. So as far as what the Court has done in the past. It is a very simple case that should come out very easily on the pro tribal side, but the fact that they took certain suggests that it's not going to be that clean.
Also, I mean, some of the justices Amy Cony Barrett said it seemed that Congress intended to cast a wide net when described being government and dey susceptible to suits.
Yeah, well, definitely, that's what she said in the oral argument, and I think for sure that's the argument against the tribes on this The problem with that argument is that that argument has been made in many cases in the past, and consistently the Court has said, no, we mean it
that tribes are sovereign. And I think one of the things that should be understood by everyone, at least under federal Indian law that if Congress wants to get rid of this power of tribes, all they have to do is pass an act that says tribes don't have it. But you can't do it by implication. You can't just sort of infer that they meant to include tribes. And this case really is about, well, if they use some words that were not tribes, do those words count? And
traditionally the answer has been easy. No, the fact that they took certain means that maybe we're going to open it up to more light abrogation of tribal sovereignty.
Well, just as Elena Kagan said to the tribes attorney, I think the difficulty for you is, aren't you really making it into a magic words requirement? And that sort of went along with what Barrett said. She said it seemed like the tribe was asking for an extra special, super super clear rule for Indian tribes.
Yeah, And I had two thoughts when I heard that part, which one is I don't see what would be wrong with requiring Congress to actually explicitly be clear that they want to get rid of this area of sovereignty for tribes. So, tribes are sovereign entities whose sovereignty pre existed the United States, and we, meaning the federal government and the United States, asserts a superior sovereignty over them. We say that we
have plenary power, we can do what we want. But if we're going to say that we have such power, we should at least be clear when we exercise it. And so in that oral argument, I almost wanted them to agree that yes, that's the point is that if you're going to take away something, take it away and be clear you're taking it away. Don't make a general thing and then later ask the courts to make it larger.
I mean, did you see a split among the justices, Which did you think were on which side?
Yeah?
I mean.
So the problem is, and this goes back to the bay Mills case that was the sort of prior case on the same topic, is that we might have thought earlier that this case hadn't been dealt with through Bay Mills, which was decided in twenty fourteen. And in bay Mills, the court had a similar opportunity to get rid of sovereign immunity or really weaken it. And despite guesswork that they would do that, they actually came out on the
tribal side. And so I think this is a very hard one to predict, because on the one hand, all the presidents says federal Indian law requires express abrogation, the tribe should win. On the other hand, you do have parties, and we saw this at the very beginning of the oral argument. You have justices who are concerned about Indians acting in the larger economic space of the country and
are very nervous about sovereign immunity. Now they were in the descent in prior cases, but the fact that they keep taking cert suggests some of them think that eventually they'll win justice.
Neil Gorsuch is often sympathetic to the Indians' rights in these cases.
Where was he, I don't know, and I think we have very clear the only one that I was like, oh my gosh, this is clear where there's two. So the really clear ones were Thomas I thought at the beginning, and even the attorney for the tribes that we do understand that some of the justices are not in agreement with this right now the acknowledgement of that, and then Amy Kobi Berrett, I think also was pretty clear that she saw this, you know, big language used in the
Bankruptcy Act would incorporate all governments on that part. Though there too, I thought this is weird because not only have we had precedent on sovereign immunity Kiowa and Bay Mills, we also have precedents saying tribes are not states, nor are they foreign governments. And since that's what's listed in the Bankruptcy Act, there seems to be pretty clear. This was the first of the Cherokee cases. Pretty clear statements from the Court when it first considered what Indians were.
They were very clear they are not foreign nations and they are not states, which would seem to be what the categories discussed in the statue were.
Tell us about the split in the circuit courts on this issue.
So to me, that makes sent So one of the things is that I think that the precedent on this case is pretty easy. But the ask from tribes to not Indians who are not familiar with tribal sovereignty, that are nervous about tribes acting in the larger economy is.
A big one.
And anytime that there's a big ask, and the big ask here is recognize our sovereignty and when push comes to sup we can rely on that to protect us against suit. That's a hard ask to make. And so the fact that courts are coming out different ways is somewhat natural. It's not surprising.
So in this case, the first circuit ruled against the Indian tribes. So isn't it normally that the Supreme Court takes a case because they want to reverse the lower court.
I think this is one of those that it could be that way. I just don't know it. This isn't might be very nervous, and I don't know how to predict it all. When bay Mills came up, that was the case that I followed more. And when bay Mills came up, I, like many of us, were very pessimistic about what the court was going to do there, and they didn't go that way. You know, they almost were apologetic in saying, like, we're doing this because the president is such that we have no choice. This one seems
so in line with that. And it's not been that long since they so I don't understand why they would feel the need except to get rid of it. But I could be wrong.
You hope you're wrong, right, Yeah, I.
Hope I'm wrong. I mean, clearly, the challenge on this is that there's got to be a solution to people that are harmed by what a tribe's doing. But it doesn't have to be done or it shouldn't be done by the courts imposing it in the absence of a clear statement by Congress, and in many ways, tribes themselves are likely to come up with solutions that would be all to respect their sovereignty and respect the need for recourse,
like by people harmed by tribal enterprises. So I think the question is do we impose that downward on tribes without a clear statement or not.
Thanks so much, Ezra. That's Professor Ezra Rosser of the American University Washington College of Law. I'm June Grosso, and you're listening to Bloomberg.