When You Take Away the Kids, You Take Away the Future
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Speaker 2: If Native Americans are just a racial group and were not members of sovereign indigenous nations, what racial group in the United States has its own police force, its own court system, its own elections, its own land, its own water rights, its own environmental regulations.
Speaker 3: Preserving the integrity of tribes as self-governing sovereign entities, and ensuring that tribes can survive both culturally and politically.
Speaker 2: Let’s just throw every single possible constitutional challenge that they can think of against the statue.
Dahlia Lithwick: Hi, and welcome to Amicus. This is Slate’s podcast about the courts and the law and the rule of law. Since last we met, the midterm elections have taken place almost remarkably without incident, and something akin to lawfulness has settled comfortably about the land. Election deniers were resoundingly sent packing. Clown show candidates were largely repudiated in the five states that put reproductive rights on the ballot. Reproductive rights won everywhere, including in like Kentucky. Democrats now retain control of the Senate. Republicans take control of the House. LGBTQ rights are being bolstered in a lame duck Congress, and Clarence Thomas continues to participate in yet another matter related to the January six lawsuits.
Dahlia Lithwick: In other news, former president and insurrection casual faux mentor Donald J. Trump announced that he will take another run at the presidency. Later on in the show, Slate Plus, members will get to check in with Mark Joseph Stern to talk about the Georgia abortion ban and Biden’s judicial appointments.
Dahlia Lithwick: But what we wanted to cover thoroughly on this week’s show is one of the most important Native American sovereignty cases in modern history. Haaland v Brackeen A sweeping challenge to the 1978 Indian Child Welfare Act. Equa, as it’s known, was a landmark piece of legislation enacted in 1978 after a congressional investigation determined that public and private agencies had removed about a third of all native children from their homes and placed the vast majority of them in schools or homes with no ties to American Indian tribes.
Dahlia Lithwick: The Brackeen are a white family from Texas who seek to adopt a four year old Navajo child. They are challenging ACOA on multiple grounds, and the state of Texas has joined the lawsuit on their side. In 2018, a federal district court in Texas ruled in favor of the Brackeen, declaring it unconstitutional. The case then went to a federal Court of Appeals, which reaffirmed the constitutionality of some parts of it.
Dahlia Lithwick: In 2019, Our two guests today have been absolutely indispensable to the conversation around Native American sovereignty. History equip itself and there is just nobody better to walk us through the big picture of last week’s arguments. Maggie Blackhawk Fond du Lac Band of Lake Superior Ojibwe is a professor of law at NYU and an award winning interdisciplinary scholar and teacher of constitutional law and federal Indian law. Her research has been published or is forthcoming in the Harvard Law Review, Stanford Law Review, Yale Law Journal and other places.
Dahlia Lithwick: She co-authored the Historian’s Brief in Brackeen, and Rebecca Nagle is an award winning advocate, writer and citizen of Cherokee Nation. She is also the host of the chart topping utterly compelling podcast called This Land, which chronicles the tick tock of this lawsuit. Rebecca is writing about native representation in tribal sovereignty, have appeared in too many publications to mention. And in addition to being an outspoken advocate for advancing Native rights and native representation, Rebecca lends her voice to fighting violence against women. So, Rebecca Maggie, welcome to the show.
Speaker 2: Yeah, thank you so much. Thanks for having us.
Dahlia Lithwick: And Maggie, even before we start, I just want to do one piece of nomenclature clarification around word choice here, because lawyers and oral advocates use the words Indian, and they use the words Native American. Those are terms of art in litigation, but they mean very different things. And so I know I have listeners who balk at the use of the word Indian at all in federal courts and statutes in oral arguments. Can you walk us through the distinction?
Speaker 2: Sure. Obviously, with any word in the world, it has an organic life that’s beyond the flattened discussion I’m going to offer here. But to give you the brief lesson I give my federal Indian law students on the first day of class. So Native American is the term for a group of people, and it’s most often the term that the group of people used to refer to themselves and other people. And Indian is, in a narrow sense, a legal term like the term slave that has a certain history, but also a legal connotation under federal and often state law within the United States.
Speaker 2: It’s referenced in the Constitution. And what it is, is that it creates a legal status around a group of people who were before the founding, seen as outside the polity of the United States because they swore allegiance to other sovereigns, indigenous sovereigns, native nations that the United States recognized at the time.
Speaker 2: And so moving forward past the founding onward, Indian continues to be the status and term of art that’s used within federal and the law. Title 25 of the U.S. Code is titled Indians. And again, it’s a legal status that the Supreme Court has held is a political designation rather than a racial category.
Dahlia Lithwick: And maybe I think there’s one other issue with the way this case gets framed in the media and popular parlance that you wanted to speak to as well.
Speaker 2: And this is a legal quirk that most people kind of stumble over. But Native American rights really aren’t at stake. There are no rights in the Constitution for Native people. Quite the opposite. So you have like treaties, for example, and the statute, Native American rights aren’t on the line if you understand this, the sovereignty, it makes so much more sense. But because we lump all minorities into rights claims, we we don’t understand the framework for it. But the court’s similarly confused. So I just say that two people out of out of a little bit of a please this isn’t it isn’t about that are no rights.
Dahlia Lithwick: And Rebecca, I’m going to ask you to do a big lift here. I’m going to ask you to set the sort of factual table for listeners who don’t know the history of this litigation, who the characters are. And I know none of us know this is intimately as you do. So we have four consolidated cases. There’s lots of players. Do you mind just walking us through who the characters are here and what the sort of various interests are? This is a pretty complicated case history. We have state and federal litigation and just kind of give us a sense of how this particular suit came to be argued at the U.S. Supreme Court last week. Why RJ, who is the four year old Navajo child nominally at the center of this litigation, is really standing in for quite a lot of other interests and issues.
Speaker 2: Yeah, so that is a big question. I’ll just start at the beginning of this case. One important distinction is that why RJ is actually legally not part of the lawsuit. She was actually born after the lawsuit was filed an amended. But in 2015, the Brackeen, who you mentioned at top, decided that they wanted to adopt. They felt a Christian calling to adopt, and they decided that rather than going through a traditional form of adoption, they would use foster care.
Speaker 2: Their first foster placement did not go well. And after five months, they actually asked CPS to take the child back. CPS approached them about half a year later with a Cherokee and Navajo baby. They agreed to foster with the explicit understanding that they would not be able to adopt the child because of the Indian Child Welfare Act. But they agreed to the placement because, as Jennifer talks about on her blog, she thought it would be a good opportunity to get her feet wet again and get back into fostering after a difficult first placement to have an easy baby.
Speaker 2: A year into them fostering the Cherokee and Navajo child. His parents rights were terminated, which is a very typical timeline in foster care. Usually parents have about a year to work on their case plan. About a month after his parents rights were terminated, Navajo Nation found a Navajo home that wanted to adopt the baby. And then a lot happened really quickly. The Brackeen filed a bunch of stuff to try and keep the baby. Their first efforts didn’t really work, and then they went back to family court with the law firm Gibson Dunn, which is a corporate law firm that also represents Wal-Mart and Chevron and Amazon and the attorney general of Texas.
Speaker 2: Which is extraordinary. Imagine if, you know, you were like divorcing somebody in a custody battle over a kid. And the attorney general of your state took a position in your custody battle. It’s unheard of. And with that legal arsenal at their disposal, the Brackeen won custody of Alim, the first child that they sought to adopt within a few weeks. And the way that that worked is that both Cherokee Nation and Navajo Nation agreed to the adoption. And the same week that the Brackeen received that information from the tribe, they filed this lawsuit in federal court claiming that ACOA violated their constitutional rights because it wouldn’t let them adopt Alim.
Speaker 2: The lawsuit is very complicated. There are actually two other foster families that wanted to adopt Native children The Clifford’s from Minnesota and the Librettists from Nevada. And then the Brackeen fought for and actually were awarded custody over a blood relative of Alum’s younger half sister, Wyatt Jay. And they were awarded custody in 2019 over a blood relative. And at the time they actually had not fostered Wyatt and she had not lived in their home.
Speaker 2: And so when you look at the three underlying custody cases and also the case of Wire J, what stands out is that these foster parents are claiming that Aqua violated their constitutional rights because it wouldn’t allow them to adopt Native children. Every native child had a native blood relative that wanted to raise them, and every blood relative was told no, whether it was from a family court judge, a social worker. They had to fight the actual foster parents in court. They all faced hurdles and only one native grandmother was able to adopt her grandbaby and it took her six years of fighting. And so just objectively, the blood relatives of these children factually faced more hurdles in trying to keep their children than the non-native foster parents did in trying to adopt them. But the non-native foster parents are the parties and the Supreme Court saying that it violated their constitutional rights.
Speaker 2: There is also states joined the lawsuit. So and one thing that’s important to note is it did start off as three states, but now that it’s at the Supreme Court, it’s just Texas. So Texas joined the Brackeen. When they filed, they asked other states to join on. They had a pretty lackluster response. And so Indiana and Louisiana joined those two states, actually dropped out at the Supreme Court level. So the lawsuit is Texas and these three sets of foster parents and the birth mother of baby, oh, suing the federal government and then defending Aqua is the U.S. federal government and four tribes that intervened in the case pretty early on to make sure that tribal interests were represented and the important litigation.
Dahlia Lithwick: You’re amazing. Thank you.
Dahlia Lithwick: And I wonder if maybe Maggie can clarify. One thing that’s worth saying is this is a facial challenge to acquire, but we don’t have like a finding below. We don’t have a trial record. The state court case is going to trial. And then, Maggie, just beyond that, after you’ve clarified that for us, the doctrine here is just a thicket. We’ve got state law, federal law, tribal sovereignty, and then there’s like this is ostensibly a family law case which invokes, you know, complicated questions about the best interest of the child. But then we have plaintiffs raising claims about race discrimination under the 14th Amendment and commandeering under the 10th Amendment. And this is all there’s so much going on here in what Rebecca just described is like essentially a family law case. So I wonder if you can just again, as best as you can, try to just pull apart all the strands of doctrine so we can think about what happened at the argument.
Speaker 2: Yes. And so not everything was covered at oral argument. I know we’re going to get there, but I’ll try and give a little bit of. An abbreviated version of the challenges that have been mounted against the Indian Child Welfare Act, which, as you’ve described, is a facial challenge. It’s not an as applied challenge. So the individual plaintiffs and the state of Texas are trying to challenge that the entire statute is unconstitutional, root and branch, not just as applied to these particular foster parents, not just applied to this particular state in on these facts, but that there really is no reasonable or constitutional application of the statute such that the Supreme Court should hold the entire statute is unconstitutional, or at least provisions of it, if it decides that it’s not severable, it’s a much higher standard than an as applied constitutional challenge to a statute in the individual plaintiffs.
Speaker 2: And the state of Texas have taken the kitchen sink approach of let’s just throw every single possible constitutional challenge that they can think of against the statute. Usually these things are thinned out more at the district court level, but they had a very amenable district court judge that didn’t quite bend things out. And they even began to raise more fervently some certain constitutional arguments at the Supreme Court level that had really not been highlighted below.
Speaker 2: And so the big constitutional challenges to acquire are equal protection. And the quirk to that is it’s a Fifth Amendment because it’s a federal law. It’s not the 14th Amendment acting here. They can say that it’s forcing the states to be able to do that, and there’s some space for that. But they’re saying that it itself is unconstitutional race discrimination, and that’s with respect to certain provisions, placement preferences, as well as the fact that it applies to Indian children. And so it has two different classifications in it. One, the application to Indian children and the other a placement with other Indian families, which under the statute includes families that include tribal members that are enrolled in a native nation. So that’s one challenge.
Speaker 2: The next is a challenge to Congress’s power to pass it at all. So that’s saying that essentially the law exceeds the power of the Congress. They specifically try and rooted in the Commerce Clause power. It exceeds Congress’s Article one power to pass Aqua. And they’re trying to argue for limits on specifically the Commerce Clause or the Indian Commerce Clause power of the Congress, which is something that they didn’t argue as fervently below and came up quite a bit at oral argument because their briefing on it, their explanations around it, were a little messy and blurred with their equal protection arguments.
Speaker 2: And then the other big one is the anti commandeering challenge. So it is a rare statute within federal Indian law that tells states what to do and specifically tell state courts what to do. The majority of federal Indian law governs the relationship between the federal government and native nations. There are a few statutes that govern the relationship between the native nations and state governments, but there are fewer and further between. And so the commandeering challenge is a big deal.
Speaker 2: And there was quite a bit of concern about commandeering raised specifically by Justice Barrett and specifically with respect to a provision called the Active Efforts Requirement of the Indian Child Welfare Act, that it requires state governments to do extra work around holding native families together before they make decisions around the placement of Native children. Those challenges because there are fewer statutes that tell state governments what to do, have less sweeping consequences.
Speaker 2: So it’s the anti commandeering challenge is seen as a more narrow challenge than the first two, the equal protection and the Article one challenge. Then there’s also non delegation challenges on top of all of that. And then since this is a consolidated case of a cross petition that was granted, both sides won and lost below. You do have claims that the individual plaintiffs and the state plaintiffs lack standing in this case to bring certain claims, because as you can imagine, the state of Texas doesn’t clearly have a racial discrimination dog in this particular fight. Although they tried to explain that at oral argument, it was really very, very creative.
Dahlia Lithwick: Rebecca Well, I guess this is another one of those cases and it feels like it’s a theme this term where we have, you know, white Americans who are alleging that, you know, race conscious remediation is actually racist as against them. And it does raise this I think it raises this core issue that is present throughout oral argument, which is, you know, is equal status predicated on race or on politics. And, you know, the tribes and the solicitor general are saying this is politics, that these are political members of a quasi sovereign tribal entity. And I wonder if you could walk us through. I want to play for you. Here’s Gitanjali Brown Jackson, trying to explain what the political, not racial interest is.
Speaker 3: I mean, Congress said things like there’s no resource that is more vital to the continued existence and integrity of Indian tribes than their children. They constantly cast regulations regarding children, Indian children, as a matter of tribal integrity, self-governance, existence. So why isn’t that enough to bring it within the scope of their plenary power?
Dahlia Lithwick: And I wonder, Rebecca, if you can just help for people who can’t quite figure out whether to think about this as a fight about politics or race, how that got so, so, so muddied at argument.
Speaker 2: I think it all got muddy that argument because even in that quote, she’s kind of talking about Congress’s Article one power. And so they’re trying to argue that it’s not within Congress’s power to pass a law like Aqua because Native children not being removed from their families and tribes is not relevant to the self-governance or self-determination of tribes, which is and you know, what Justice Jackson was pointing out is that in the legislative history of the acknowledgement that without children, tribes don’t have a future, it was acknowledged that that it is very much explicitly part of that.
Speaker 2: But then the other part where this distinction between the legal status of Native Americans as a racial group or a political group came up with the Equal Protection Challenge. And so the way that ACOA functions is that it only applies to children. An Indian child under the Indian Child Welfare Act is only a child who is either enrolled in a federally recognized tribe or eligible for enrollment. And the placement preferences also work that way to the first placement preference is any member of that child’s family, which actually can also be non-native members of the family, then another citizen of that child’s tribe, and then a citizen of another federally recognized tribe.
Speaker 2: And so in no way where the law works. Is it just about race? It’s about tribal citizenship and how the law functions. And there’s a whole host of federal laws that treat tribes and tribal citizens differently based on this political status. And that’s where the case gets really scary because it could have really sweeping and broad implications for the rest of federal India. And so if Aqua discriminates because it treats tribal citizens differently than, you know, non-Native folks.
Speaker 2: Well, what about the clinic where I go and I get my teeth cleaned? You know, if Aqua is discrimination, what about the fact that tribes can operate casinos in states or in places where non-native casino developers can’t operate casinos? You know, if Native Americans are just a racial group and we’re not members of sovereign indigenous nations, what racial group in the United States has its own police force, its own court system, its own elections, its own land, its own water rights, its own environmental regulations. And so the fear is, is that this case is almost kind of like pulling a thread on a loose sweater. And if they can kind of topple aqua, then everything else can go with that.
Speaker 2: And I think a really important point like thing to point out is that the corporate law firm who is representing the Brackeen and the other plaintiffs, pro bono and their pro bono lawyer, Matthew McGill, filed a lawsuit last January on behalf of a non-native casino developer arguing that the, quote, tribal monopoly on gaming in the state of Washington violated the non-native casino developer’s constitutional rights for basically, like, they’re basically making like a states rights argument and an equal protection argument, the same that they’re making here in the equity case. And so you can see very like obviously where they’re sort of porting the legal arguments that they’ve made here about children and just sort of transporting them over to casinos.
Dahlia Lithwick: And Maggie, you’ve kind of touched on this. I think you’ve both touched on this. But one of the fights that we’re having here is about sort of Article one and plenary power. And even I think Justice Alito says, look, if plenary means plenary, which means pretty much everything Congress has like very, very expansive powers. And the Brackeen are arguing, no, it’s super limited. There’s these like three tiny little buckets of plenary power. And I just want to play Elena Kagan for you, because I think she’s trying to tease this out and then maybe you can tell us where the court came down to the extent that it was clear. Here’s Kagan.
Speaker 3: 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 leet and saying everything else is left out. When we’ve said over and over everything except really rare things are in.
Dahlia Lithwick: And I wonder, Maggie, if you can just sort of help us think through the deep weirdness of even the conservative justices saying, well, the plenary seems like it would be kind of a lot, but maybe not.
Speaker 2: Yeah, there are a few puzzles around national power over Indian Affairs. One of the big puzzles I had, not just with the conservative justices but with the court generally, is why the court was so fixated on the Commerce Clause. Justice Gorsuch was the only one who popped up and said, Well, what about the treaty power and how about the spending clause? Or how about all of the other ways that the Congress regulates state governments? Now, how about all of those other ways to regulate? Why are we fixated on this little piece of text? But the puzzle and the fight around this little piece of text is that the Supreme Court for a long time has said that congressional power or the power of the political branches this plenary over Indian affairs. And that has meant not unqualified.
Speaker 2: Even in its own doctrine, the Supreme Court has created limits. It created a limit in Martin V Roe, which is the Supreme Court case from 1974, where the Supreme Court held that Indian was a political status rather than a racial category and was held to a different standard than other challenges to race based remedial legislation, saying essentially that even hiring preferences into the BIA were not race based remedial legislation subject to strict scrutiny.
Speaker 2: Instead, the court created its own test to test the limits of the plenary power, which is rationally related to the federal government, the special relationship with Native Americans and advancing tribal self-government, etc., etc. And there is a long standing doctrine called the Trust doctrine that has been created not just by the courts, but also heavily by the political branches to construct federal Indian law. So many statutes within the federal government canon, including the Indian Child Welfare Act, point to their trust responsibility as a source of power. So even that it points to both the Commerce Clause and the trust responsibility as a basis for Congress’s constitutional power in passing it.
Speaker 2: So the puzzle, of course, comes from we have this expansive power is is unique to Indian affairs. And there’s a challenge here. We’re really arguing full throated for the first time that there’s a limit on that power. And Mr. McDowell tried again very creatively to offer three buckets of limited plenary power.
Speaker 2: You know, it’s a little ironic because in other areas, especially in recognition of tribal sovereignty, advocates have had good luck in just saying, well, sovereignty is expansive and all encompassing, except it only covers three buckets when it comes to tribal governments. And so I think they were trying a similar litigation tactic here where let’s just create a strange limit on what people think is a strange power. They can’t find a clear basis for it in the Constitution. They can’t understand it. They can’t come up with a limit for it. The Supreme Court, much many of the justices just don’t seem to like the Indian Child Welfare Act. They don’t seem to like legislation that burdens essentially white people more than nonwhite people. And so they’re going to want to find a limit. So they tried to offer it.
Speaker 2: There are some really interesting complexities, of course, around the plenary power doctrine. You see it in other areas and you saw those come out of it at oral argument. So Congress has planetary power in foreign affairs and has plenary power on immigration. It has plenary power over the territories, it has plenary power over Indian affairs. And not all of those constitutional bases are clear and in Indian law. Justice Thomas has raised for years, okay, there’s a problem with this whole idea of plenary power in the context of Indian law. It doesn’t quite hang on this text of the Indian Commerce Clause. The conservative justices have taken issue with the Commerce Clause power of Congress, Commerce Clause, power in the interstate commerce context. And so they similarly want to limit it with respect to Indians. But the real puzzle, I think, in this case is that there are other constitutional bases for the Indian Child Welfare Act.
Speaker 2: So the big fight with Justice Thomas and the conservative court about where federal power over Indian affairs comes from and how all of Title 25 exists maybe is a problem because they’re trying to shove it all into one particular bucket rather than opening up basically legal reasoning and thinking, well, golly, maybe this is a spending clause power, which it is, which the state of Texas admitted that it would lose Social Security funding if it didn’t comply with it. The briefs on the merits for the tribes reference the spending clause as a basis for the statute. So the fight over Article one doesn’t have to be within the Commerce Clause. It doesn’t even have to be within the context of plenary power. It can be within something as boring as the spending clause, which gets us through. As we know, both the Article one issue and the commandeering issue. Those are both resolved.
Speaker 2: If it is just a spending clause statute, just like all of our other cooperative federalism statutes that the states have agreed to, which if you look at the history, the states have actually agreed to federal oversight of native child welfare since the 1920s and 1930s. They have agreed to accept additional federal funding through the Social Security Act and otherwise to have federal oversight of their care of Native children. This is nothing new for them. They’ve been agreeing to it for a really long time. So for them to pop up now.
Speaker 2: And say, not only is this commandeering us, not only is something that we never agreed to, not only is this a traditional state function, but it actually exceeds this strange power that we can explain in other ways. It’s not form and it’s a spending clause power case. And so there is just I think the puzzle is here is why the Supreme Court isn’t thinking this through the same way it thinks through other legal issues broadly and with its legal hat on rather than its policy head on.
Dahlia Lithwick: And one quick follow on, Maggie, because you just flicked at this, but I want you to unpack the history because it is in your amicus brief. You know, this is this is not a history in which, like the state and federal governments cover themselves with glory. This wasn’t about, you know, generous entities fighting to protect vulnerable tribal rights. This was about everybody saying, like, I don’t want it. I don’t want to do this. It’s it’s. Can you talk just for a minute about sort of how we got to this place where the states essentially said, fine, this is 100% wholly a federal issue. We’re out.
Speaker 2: So initially you had tribal governments that really had jurisdiction over native children, and they were recognized by the federal government. And really, if you think about the beginning of the United States of 13 little colonies clinging to the Eastern seaboard, you understand, you know, an argument that of expansive federal power over every native child within the interior is a little puzzling if we think about the United States from that historical trajectory. So tribal governments really oversaw their children.
Speaker 2: Then we do have some more negative periods, of course, of federal power over native children, including the boarding school era. And the federal government came to realize that that was a mistake. And so it came to realize that it was a mistake at a time where it was expanding welfare programs for people generally by using state block grants. So this was a time of the Social Security Act, the New Deal, the beginning of cooperative federalism. And the federal government thought that it could solve the closure of the boarding schools by sending native children to state schools, to the oversight of state welfare agencies that would oversee non-Native children. And so that was really the first time that state governments were asked to oversee the welfare of native children.
Speaker 2: It was shortly after the passage of the Indian Citizenship Act that clarified that Native people weren’t just citizens of their own Native nation, but they were dual citizens and United States citizens in addition. But the states refused. So the states completely refused to accept jurisdiction over native children. In many instances, the federal government had had to contract directly with state public schools to pay the individual tuition for native children, starting in the 1920s in Wisconsin, for example. The federal government paid for a federal employee to work within the state child welfare agency that the federal government would fund entirely and that federal employee would work with native children to force the states to oversee the welfare of Native children.
Speaker 2: And so they had a joint employee that the federal government could come in and see records from the state of Wisconsin, those contracts with the state of Wisconsin over that employee, as well as other federal funds that went to that state, had specific removal standards that required the state to preference the particularities of native culture and Native communities and to hold Native families together. They had echoes in them of the language from if you can get that direct language from our brief.
Speaker 2: But you see those contracts starting in the 1920s and 1930 with many states and moving into this period where the state governments, once they finally said okay with full funding from the federal government, that’s the only way that we will do this with 90 to 100% funding from the federal government, including occasionally federal employees sitting at the desk of state agents doing the job of state agents over native children.
Speaker 2: They grudgingly accepted jurisdiction, and once they did, they really chose the sort of least cost outcome. They were protecting their bottom lines the whole time because they were getting money to just pay for that one child oversight of that one child. And they refused to bring the whole family of native people into their welfare programs, which would include disability, old age, other versions, unemployment, other versions of state support. They saw it as, okay, well, we’re getting money for this one child, but let’s take that one child and place that one child into a middle class home because it’s cheaper.
Speaker 2: And so you had a mixture of this puzzle around the political status of Native people who were not clearly. Before the 1920s, and we’re litigating their ability to vote in state elections. We’re litigating their state citizenship status into the 1940s, fifties and sixties, up until the passage of the Voting Rights Act, which really helps not only voting rights in the South, but also voting rights for Native people in the West.
Speaker 2: But you had this confluence of of concerns over jurisdiction and concerns over funding, where states did not see Native people and Native children as part of their polities. They couldn’t tax in their mind as native lands. They saw their jurisdiction over Indian country as limited. And so they saw the special relationship between native people and the federal government as something that was preclusive of their requirement to oversee the welfare of native children. Once they took that burden off and in two decades they removed 25 to 35% of native children from their homes, their families, their parents, their communities, all because it was dramatically cheaper.
Speaker 2: And you can imagine coming out of the Great Depression, you have this wonderful post-World War two era where everyone is floating on the federal and state welfare funds of different kinds, except for native people who were left out of this entire conversation by state governments. And so, of course, you had entrenched poverty in those communities. You’re going to see state governments running over them and finding ways to take Native children and put them into the cheapest homes that they could put them into that the federal government would pay for.
Speaker 2: But to see this as a state problem, to see this as a state traditional function, I think is is problematic. But also to see it as an area where the federal government didn’t want to care for native children is also problematic as well, because throughout those period from the 1920s to the 1970s, in the passage of where the federal government was at times literally contracting with foster care, families in the states trying to force someone to take care of native children, because it had said, well, we did a bad job of this, okay.
Speaker 2: We think maybe the state governments, this is where we normally think that the traditional care of children should go. This is where we’re building and funding federal infrastructure and block grants to try and get the infrastructure to care for children and child welfare across the United States. It really started in the 1930s, forties and fifties for the first time. And so the federal Government put into every contract, the state governments came to Congress and argued for their contracts and contract renewals, including arguing for specific placement standards and removal standards, substantive standards that were put into the federal state contracts. And so the federal government tried desperately to get the states to take care of Native children, to take care of Native families, and to do a good job of it and to even hold them together.
Speaker 2: Again, these contracts had in them provisions that preference Native communities the particularities of native culture and the holding together of Native families. And then article was passed in the wake of the State’s not doing a very good job of handling these federal state contracts. And the federal government essentially giving up and saying, okay, well, at least now we’re in the self-determination era. We can try and turn over and reaffirm the power of tribal governments to be able to oversee their own welfare systems for their children and their families. And so in it, this is part of equity that you don’t hear much about.
Speaker 2: It actually set up a system where the federal government would contract with the tribal governments in the same way we had been contracting with the states to be able to set up their own child welfare systems, to give them the tribal governments, the block grants rather than the state governments, because the state governments just couldn’t pull it off. The state governments just ended up removing all of those native children from their families. The active efforts provision for state governments saying you have to really try and give wraparound services and really try to hold a native family together before you take away a native child.
Speaker 2: If you think about it in the context of decades of the federal government trying to get the states to do right by Native children and then finally giving up and saying, okay, if you’re going to do this, then we’re really going to make clear that you’re going to have to try to use all of your state services around these families to hold them together. Because, again, state governments had refused. They even had to have the federal government forced and threatened to take away Social Security funds for them to include native people at any point in their Social Security or general welfare systems for the state governments. And so this isn’t a story of, you know, the federal government was terrible with native children, state governments were terrible with Native children. How awful.
Speaker 2: This really is a very narrow history and a very narrow policy failure of about 40, 50 years. But. Through that lens, it’s much more clear that this is a problem not of race discrimination per se, but one of economics and one of politics and problems of jurisdiction where the federal government really had efforts to try and deal with this area and the state governments just couldn’t handle it. And so the thought now that the state governments are protesting the Indian Child Welfare Act is is really shocking in the context of that broader history.
Dahlia Lithwick: I want to actually turn back to Rebecca, because that very last point you made is one that I can’t help but be reminded. As you know, I was reading the briefs and listening to arguments that in some sense so much of the harm that I think was trying to redress had to do with stereotypes about how we raise children and, you know, lack of resources and socio economic judgements about what’s in the best interest of children.
Dahlia Lithwick: And this bleeds into so many conversations that we’ve had in other sort of areas in this show, You know, the work of Michelle Goodwin and Dorothy Roberts, just about how poverty inflects on how we think about who is a good parent. And I wonder if there’s a lens to look at this. I mean, you mentioned just how I think from the beginning this is just really profoundly shaped by how we allocate resources and then make determinations about who gets to keep kids.
Speaker 2: Yeah, absolutely. I mean, I think that when you dig into the details of what happened in the underlying custody case, they tell a story not of how Aqua harms Native children or treats non-Native foster parents unfairly. But it tells a story of like, why Aqua is still needed today. I could give like 50 examples, but I’ll just give one. But there’s so many examples like this.
Speaker 2: So more than one extended family member was told by a social worker that they couldn’t foster their relative because they had a nonviolent criminal record. And in my research, I found out that one of the plaintiffs, Nicholas Brady, served a 30 day prison sentence for a DUI in 2009. And that’s the same year, according to his federal declaration, that he was licensed to be a foster parent. And rather than him losing his license for that prison time, he went on to adopt three children from foster care. And like I said, I could give 50 more examples like that. But I think that there’s still a lot of bias in the system against Native families and especially Native families who are poor. And that’s why I think that AGOA is definitely still needed.
Dahlia Lithwick: I want to play for you, Justice Gorsuch, and we can talk in a minute about Justice Gorsuch, because it’s just to the enduring mystery that he turns out to be just the, you know, coming in hot firebrand. He is really, really all in for it. But I want to play for you him saying exactly the thing that Rebecca said at the top of the show, which is if we take the tack that Texas is offering and that the Brackeen are offering, everything else comes down.
Speaker 4: This new rule would would, I think, take a huge bite out of Title 25 of the U.S. Code, which regulates the federal government’s relationship with tribal members. There are health care provisions that Congress promises to Native Americans off reservation. That doesn’t seem to fall in any of your buckets.
Speaker 4: Congress has permitted tribes to exercise power over environmental regulations that have indirect effects off reservation that would that would seem to go to. We have laws that promise Native Americans access to sacred sites off reservation and religious liberties off reservation that that would seem to go and I’m not even sure maybe the liquor sale those old precedents, but maybe that’s commerce. I don’t know. But there would be a lot that would be written out of Title 25. We’d be busy for the next many years striking things down.
Dahlia Lithwick: And I wonder, Rebecca, it seemed as though the argument was, No, no, no, no, no. This is limited to Aqua, but is it possible to limit this to Aqua?
Speaker 2: Well, that was the question that they couldn’t answer. You know, so they tried to limit it to Aqua because they’re like, oh, well, it’s just family law. And then, you know, there’s like laws about kidnapping and the parental rights of people who are in the military, you know. And so then they try to say, oh, well, it’s just because this is happening off tribal land. And so the Congress can regulate things if it’s on the reservation, you know, or they try to say, you know, I think they try to bring up the third placement preference, too. It was it was confused. And I think that what is great about Gorsuch’s quote is that he was really pushing back about that, but in a very specific way in that moment in that they were trying to weasel their way out of the broader implications. And even with the ways that they’re trying to argue that Aqua was specific, he was like, well, you know, Native people get health care off the reservation, you know, like it’s not. And that’s why I think it’s really valuable to have people on the bench who are knowledgeable about how these things work.
Speaker 2: There were a lot of moments where it’s very clear that the justices didn’t understand Aqua and also didn’t understand aspects of federal Indian law. And so it’s really different, you know, when Baby Girl went to the Supreme Court. I think the tenor of the oral arguments was very different than what it was last week. I think a lot of people are like, wow, Gorsuch like why he’s such a champion and really, like all the man is doing is following the law as is written. You know, he’s a textualist where like the text, when it comes to the rights of indigenous nations, he still reads it like it says. And a lot of other textualist are like, Oh, well, that was so long ago, or it’d be really inconvenient for other people today. So, I mean, this treaty can’t possibly mean what it says. And it’s like, well, actually, yes, that’s exactly what it means. And so I think that, again, it feels radical because so often the federal judiciary just makes up its own rules or really departs from the written law.
Speaker 2: But you know what Gorsuch is doing? And you know what? Like sort of I. Were in Jackson and Kagan were also doing an oral argument like isn’t radical. They’re literally just talking about the law as it is written. I just wanted to make something clear because I think for legal folks, I think something is getting lost in this discussion, which is the fact that the power over Indian affairs is plenary, but that power is held by the political branches.
Speaker 2: And so not only is Gorsuch leaning into his concern about rule of law principles, he’s also leaning into his respect for the separation of power in the Constitution between the court and the Congress. So when Gorsuch, for example, reads treaties like he did in McGirt, he understands that having the court unilaterally abrogate a treaty because it doesn’t like the treaty provision. It’s just not really a very good constitutional principle That’s not a good separation of power.
Speaker 2: Normally, when we’re thinking about foreign affairs, the treaty power, all of that is within the political branches and it’s there for a reason because of electoral accountability. We don’t want nine people deciding all of our foreign affairs power and what our treaties say and deciding questions of war and violence and other forms of state militarism. That’s just not the right branch for that power to be rested in.
Speaker 2: And so when you see Gorsuch being passionate in these areas, it’s not just rule of law principles. It’s also the fact that he’s looking to the branch that’s supposed to be doing this work. And you see quotes from him also saying, we’ll take these policy arguments across the street. You heard it from Justice Jackson. This is Congress’s power. So Congress decides that this is a political category rather than a racial designation.
Speaker 2: Congress decides that this is a rational relationship and we can come in and do this basic review that we do in a context of the exercise of a plenary power over Indian affairs. But we don’t do the more intensive scrutiny of whether or not this is violative of our race doctrine under strict scrutiny. Instead, we’re much more deferential to the political branches like we are in questions of foreign affairs, of questions of military right, questions that we see a more deferential court on. And so I think not only are you getting all the emotions out of Gorsuch because it’s generating rule of law, principle problems, but it’s also big constitutional problems that I think baffle me as to why the other conservative justices don’t similarly take a stand on those problems.
Dahlia Lithwick: I think you just stole my thunder, Maggie, because the last one. No, no, no, no. In the best possible way. But the last clip I wanted to play for the both of you is the thing I’ve been sitting with all week, which is good Tanduay Brown Jackson making effectively the point that you just made in this really, I think, powerful way.
Speaker 3: I think there’s an aspect of your article, one argument that really boils down to a fundamental question that comes up in the law a lot, which is who decides? Who decides whether regulation in this area accounts for Indian self-government, promotes Indian self-government, has a sufficient tether.
Speaker 3: I keep hearing you say in response to many of my colleagues questions that you think that regulation related to family affairs does not have a sufficient connection to Indian self-government.
Speaker 3: But in the actual legislative history of this equa and I’m reading from the Federal Register, Congress says that it indicates that equal reflects its, quote, concern about preserving the integrity of tribes as self-governing sovereign entities and ensuring that tribes can survive both culturally and politically.
Dahlia Lithwick: So I just think that she’s making the point that you’re making, which is, you know, you’re sort of big footing in here and saying, well, we the state of Texas, think that we get to decide. And as was manifest throughout these arguments, Texas was just like hurling a lot of policy arguments around about we just don’t like it. This makes us feel bad. And what I think she is saying is a really deep reading, both of like, again, the original text, This is what it is if you’re going to look at text in, meaning I’m reading you the words. But she’s also, I think, making a really deep comment about power and who has the power to decide. And I wonder if I mean, maybe you can go first, Rebecca, But it does seem to me that there’s nobody in some sense better situated than this brand new Justice Jackson, to remind us of that fact.
Speaker 2: Yeah. There was another exchange that I thought was really telling where basically the Texas solicitor. General with Kagan was like, yes, well, it’s just atmosphere. The brief when he was talking about the things about Aqua that they don’t like, and she got him to admit that it was atmosphere. But yeah, absolutely. I mean, I think and Maggie can speak to this much more eloquently than I can, but I think it’s very ironic that this argument that Congress doesn’t have this authority is coming now after Native folks have built enough political power in this country that congressional policy has started to really serve the interests of tribes.
Speaker 2: And you know what’s not perfect? Since the seventies, we’ve had a lot of really important legislative wins, you know, And when there was congressional policy that harmed tribes, there wasn’t the same constitutional challenge. And so, yeah, I just think there’s a deep, deep irony in that being made now. And I think that for a lot of Americans who aren’t familiar with it or who aren’t familiar with federal Indian law, you know, maybe it can be a question in their minds about like how this case impacts them or how it affects them.
Speaker 2: But people are talking about the case, but it’s probably not going to be, you know, one of those big blockbuster cases of this session. But I really think it should be. And I think the case is a real test for the Supreme Court and a real test for our democracy, frankly. And I think, you know, it’s bringing up these big questions around what is the role of the court and how wedded is the court to precedent to respecting the separation of powers? You know, even to kind of the technical rules of civil procedure and whether or not like, you know, the plaintiffs have standing to make the arguments that they’re making.
Speaker 2: You know, there’s so much about this lawsuit that from just a really kind of strict reading of the law is really wonky and does it make sense? And so will the justices kind of stick to that role or are they going to kind of branch out into something more political, more atmosphere? You know, and so I think that for folks who are concerned about the integrity of the court, concerned about the court being more about politics than the law, who are concerned about what that means for all of our rights and for all of our democracy. I think that this is a case that people need to be paying attention to.
Dahlia Lithwick: Last word to you, Maggie.
Speaker 2: So I really appreciated Justice Jackson’s argument that I felt like in many ways she was raising not just the separation of powers concerns by asking, but who decides the question of power within the horizontal separation of powers? I think that that’s right. Not only was she raising, for example, questions about the commandeering doctrine and its roots in history and tradition, but I guess the big hope that I have for Justice Jackson and for the court more generally is to raise the real issues that exist in these cases that don’t come up at oral argument at all.
Speaker 2: I think the only person who raised this at all was, ironically, Justice Kavanaugh. He was the only justice to raise the fact that we have a constitutional value against colonizing other people. And he didn’t fully reflect on the fact none of the justices reflected on the fact that at present, the United States is a colonial power that holds hundreds of governments within a subordinated status. And it does this through federal power, ongoing federal power through all different aspects of our Constitution.
Speaker 2: It got to this status of holding hundreds of governments and subordination by exercising constitutional powers all over the place territories, clause, treaties, clause, you know, military write, executive power. It developed an apparatus to be able to stretch from sea to shining sea and to take people and hold them at the margins of American empire and then stretched overseas to Puerto Rico, Guam, American Samoa, the Philippines. Yet we don’t actually have conversations in any of these cases about American colonialism and the constitutional values at stake in that effort.
Speaker 2: And so when I see the justices struggle around questions of who decides, I think it should be a broader question of who decides not just between the branches of the federal government, but also between the governments that are now held in a subordinated status where you see native nations, you see the government of Puerto Rico, you see these other sovereign polities actually within the measure and balance and conversation of who gets to decide in these cases.
Speaker 2: It’s not just Congress, let’s just throw it to Congress. But how about we actually reflect on the fact that we don’t have consent by the governed for many, many, many nations that are now held by the United States and the non Semite sovereigns, some I recognize some enclave of state status. My hope would be that Justice Jackson and others would really start to tackle with the question of. Who decides as a constitutional matter would really start to engage not just with the power of the Congress over Indian affairs through its Article one Commerce Clause power. But to think about the problem of American colonialism as something that we need to have the constitutional power to remedy, to mitigate.
Speaker 2: And I think that would have answered all of the questions that were asked about the limits and reach and sources of the federal power over Indian affairs in this context. And it would take away much of the sort of fictional debate that we’re having around the inability of Congress to be able to remedy the taking of children where we actually have to fight over the federal government being a better actor than the states in this context, only because we’re trying to argue for continuous federal power when instead we should be talking about tribal governments, we should be talking about colonialism, we should be talking about, frankly, the context of genocide and how nation states often take the children of other nation states to be able to deprive that other nation state of sovereignty. But we don’t have those conversations and we don’t have them before the court because we’re not actually talking about the primary issues and constitutional values at stake in these cases.
Dahlia Lithwick: Maggie Blackhawk is professor of law at NYU and an award winning interdisciplinary scholar and teacher of constitutional law, federal Indian law and legislation. She co-authored the Historian’s Brief in Brackeen. Rebecca Nagle is an award winning advocate, writer and citizen of Cherokee Nation. She is also host of the Extraordinary podcast This Land, which I commend to every single one of you. Maggie Rebecca, thank you so, so much. I learned more in the last hour than I have learned embarrassingly in my entire legal career. Thank you.
Speaker 2: So much.
Dahlia Lithwick: Hi. We are back with a Slate plus special edition of stuff that we get to talk about that we didn’t fit into the main show. And there is no one I would rather talk to at the end of what feels like really a very long week than Mark Joseph Stern. Mark, welcome back.
Mark Joseph Stern: Happy to be here at the end of this nine, ten, 11 day week. Feels like that’s how they all are now.
Dahlia Lithwick: This has been a long week. You know what we’re not going to talk about?
Mark Joseph Stern: What?
Dahlia Lithwick: Let’s not talk about the person who announced his run for the presidency in 2024.
Mark Joseph Stern: I strongly agree. Let’s not even say his name. Okay, How about that?
Dahlia Lithwick: I’m not saying his name. And I’m also not talking about the person who is destroying the app on which I only recently rejoined after ten year hiatus. On Twitter I only just recently joined, could never get a blue checkmark. And somehow by rejoining, I have destroyed it.
Mark Joseph Stern: I blame it entirely on you. I lay this all at your feet, but I agree that we should not name the person who is behind the meltdown that we are all experiencing right now. Okay.
Dahlia Lithwick: Cool. Let’s not talk about any of those. Or we can talk about vampires or werewolves. Just.
Mark Joseph Stern: We can talk. Yes. Yes, absolutely. As long as all our Georgia listeners are out there doing Team Herschel or Team Warnock based on which is a vampire in which is a werewolf. I don’t think that makes any sense.
Dahlia Lithwick: Yeah, you’re good. We got all our siblings, so let’s check Mark, if we could.
Dahlia Lithwick: I think we should start actually with Georgia, because there was a rather astonishing opinion from a Georgia court on a Georgia abortion law. And the astonishing part further astonishes with the astonishing footnote you want to walk us through.
Mark Joseph Stern: Yeah. So this is a really interesting decision from a state court judge. Superior Court Judge Robert McBurney in Georgia. And he was assessing Georgia’s six week abortion ban, which the state legislature passed in 2019, back when Roh was still the law of the land. And it was flatly unconstitutional for states to outlaw abortion before viability. Of course, after row was overturned, the federal courts allowed this law in Georgia to take effect and the six week ban sprung into action. It was essentially a kind of trigger law. But a group of abortion rights supporters challenged it in state court, making the intriguing argument that Georgia law works a bit differently from federal law.
Mark Joseph Stern: There’s a long line of precedents going back more than like 120 years that under Georgia law, the constitutionality of a particular statute has to be assessed at the time of passage, not at the time when that law happens to appear before a court. And if that statute was unconstitutional at the time of passage, then it is permanently null. And the doctrine is called void ab initio. I’ll try to avoid using any further Latin.
Mark Joseph Stern: And so Judge McBurney said, look, when this law was passed in 2019, clearly Roh was still law and it was unconstitutional. And so I have no choice but to declare it void and to instruct the Georgia legislature that if it wants to impose a six week abortion ban, it has to do so now after row has been overturned and face the immediate consequences of its own decision. It can’t enact this kind of trigger law knowing it will be buffered against the consequences by the Supreme Court and then just kind of fold its hands and watch as that law springs into effect two years later.
Mark Joseph Stern: And the decision got a whole lot of attention, especially for this footnote where Judge McBurney kind of slams Justice Alito’s opinion overturning ROH. In Dobbs V Jackson Women’s Health Organization, and he criticizes Alito’s frothy language, disparaging the views espoused by previous justices and said the magic of Dobbs is not its special insight into historical facts or its monopoly on constitutional hermeneutics. And I think that’s just a really powerful kind of explanation.
Mark Joseph Stern: He follows up and says, it’s just numbers. It’s a numbers game. And the reason that he launched into that kind of grouchy footnote, I think, is to explain why this doctrine exists and why it clearly applies here. Because what the state of Georgia tried to argue is, well, because ROH has been repudiated, it was never the law all those 50 years that courts had to apply. ROH that it was binding precedent. It was actually just a mistake. It never counted as real constitutional law. And Judge McBurney pushed back through this footnote and through the rest of his, I think, very persuasive opinion and said, no, that’s not how it works. Five justices said Roh was the law for many years, and now five justices say it isn’t.
Mark Joseph Stern: Both of those decisions are certainly binding on the courts, but the decision in Dobbs does not retroactively repudiate the real ness of Roh during its 50 year reign as precedent. And so the legislature cannot pretend as if this was never the law. It was the law when it when this law was enacted, the six week ban. And so the ban can’t stay.
Dahlia Lithwick: And I like the undercurrent that says you can go ahead and pretend, Justice Alito, that this was never precedent, that it’s this 50 year error that you’ve corrected. But like, that’s a lie, right?
Mark Joseph Stern: That is just flatly untrue. Like Justice Alito, he may have a monopoly on facts because he is in the majority so often. He may have a monopoly on law because it’s his court now. But he does not have a time machine and he does not get to go back 50 years and pretend like Rome never happened.
Dahlia Lithwick: Another interesting thing this week is that, well, no one was paying attention. The shadow docket was ticking away, doing its thing in this case in just yet another. We’ve had such an amazing execution, amazing in the worst possible sense, execution, a run at the court that’s not getting the attention it deserves.
Mark Joseph Stern: Yes, this is very unfortunate and sad news for opponents of the death penalty, but I think that opponents of the death penalty have gotten used to extremely depressing news out of the Supreme Court, really, since Amy Coney Barrett joined. But even after Brett Kavanaugh joined over the last 2 to 4 years, I would say the court has just been relentlessly imposing executions, even when lower courts try to stop them, even for legitimate or compelling reasons. We have seen over and over again a majority that wants to ensure that people are put to death swiftly and once to kind of end the tradition of last minute stays that can protect individuals rights before they are given the ultimate punishment. And that happened again on Thursday night.
Mark Joseph Stern: The 11th Circuit had blocked an execution, the execution of Kenneth Smith, and said he raised a very persuasive argument that the state’s executioner would fail to find his veins and subjects him to unconscionable pain without even ultimately killing him. He had good reason to believe that because it has happened in Alabama several times already. And in fact, it happened less than two months ago that state executioners could not find a vein to kill the prisoner.
Mark Joseph Stern: And yet the Supreme Court’s, without a word of explanation, reversed the 11th Circuit, lifted the stay and allowed the execution to move forward. And to absolutely no one’s surprise, the execution was botched, just as Kenneth Smith predicted. Just as the 11th Circuit predicted, state executioners were unable to find his veins, unable to administer lethal injection, and he remains alive, sent back to his cell to await another attempt at ending his life at some unknown future date.
Dahlia Lithwick: Mark, you wrote a really good piece post mid-terms reflecting on Biden and the judiciary and the opportunity to again think about the judiciary as top of mind for you and talk about that.
Mark Joseph Stern: Yeah, I think the judiciary should be top of everyone’s mind. And it was it was certainly top of my mind during this election season. And it’s really, really important news for the judiciary that Democrats held on to the Senate. It’s going to be even bigger news if Raphael Warnock wins reelection in the state of Georgia, because he’s the I think he’s the werewolf, though, in our in our taxonomy of the candidates, there is a huge difference for judicial confirmations between a 5050 Senate and a Senate where Democrats hold an outright majority.
Mark Joseph Stern: And here’s why. The Senate Judiciary Committee in an evenly divided Senate is also evenly divided. There are an equal number of Republicans and Democrats. That means that Republicans can deadlock the Committee on judicial nominees and prevent them from being reported to the Senate floor for a full vote in order to discharge a nominee from a deadlocked committee. The entire Senate has to hold a vote, which takes up a whole lot of time and frankly, is a waste of time and eats into floor time that Democrats could be using to pass other, more important things.
Mark Joseph Stern: And so I think anyone who cares about filling the judiciary with progressive judges from diverse backgrounds and with diverse identities should have their eyes clearly focused on Georgia. Because if Warnock wins reelection, Democrats will hold 51 seats in the Senate. They will hold a majority on the Senate Judiciary Committee. Republicans will no longer be able to deadlock and prevent nominees from leaving the committee, and Schumer will be able to confirm judges at a substantially faster clip than he has over the last two years.
Dahlia Lithwick: I want to give you a chance to tell our Amicus listeners before you go whether you will be having drinks this evening at the Mayflower Hotel with Chief Judge Bill Pryor of the. The 11th Circuit, I’m told. Your biggest fan.
Mark Joseph Stern: Yes. I would just like to send out a heartfelt thank you to Chief Judge Pryor for his wonderful and delightful shout out to me in his opening speech at the Federalist Society’s annual convention. I had thought that I might not be on his radar since all I really do is sit at my computer and write silly little articles. But it turns out he is a huge fan of Slate. Probably a Slate plus member. I can only assume based on his deep knowledge of our work. And if he’s listening to this right now, I just got to give a shout out to my man, Bill Pryor. Thank you for all of your support to slate.com. It means the world to us. And if you ever want to come on the show to a collaboration, you know, our arms, our hearts are wide open.
Dahlia Lithwick: I like to think that Judge Prior’s chief, Judge Pryor’s Slate Plus membership has actually paid for my kid’s orthodontia. That’s what I think. I think he put braces on my children, and that makes me feel good. I do want to make one semi-serious point. I don’t know why, but I think it needs to be made. Is it weird that you can have innumerable puff pieces about Leonard, Leo and the great visionary work he has done to capture the Supreme Court and the federal bench and state Supreme Court benches on behalf of the conservative legal movement, and that those pieces are okay. But weirdly, when people write pieces to say, Huh, the Federalist Society sure seems to have an outsized role in seeding judges on the federal bench. That’s bad.
Speaker 2: Hmm.
Mark Joseph Stern: I think you might be on to something here with this double standard. Slightly weird. Almost seems like they’re remarkably thin skinned. Despite amassing immense power and seizing control of the federal judiciary. And that even the slightest bit of criticism pierces their armor and makes them feel all the sides for days at a time.
Dahlia Lithwick: Yeah. I hope that when you have drinks with Judge Chief Judge Bill Pryor at the Mayflower tonight and you talk about this, you sort of find out the operative principle for who gets to say that the Federalist Society has outsized power in sitting judges. Because I would just like to know for future reference and possibly future opportunities at orthodontia. Exactly who gets to write those puff pieces and who does not. Mark Joseph Stern covers the courts, the law, the Supreme Court, tragically, the shadow docket and many other things for us here at Slate. Mark. Thank you as ever for joining us.
Mark Joseph Stern: Always a pleasure.
Dahlia Lithwick: And that is a wrap for this episode of Amicus. Thank you so much for listening in. And thank you so much for your letters and your questions. You can always keep in touch at Amicus, at Slate.com, or you can find us at Facebook.com slash Amicus podcast. Today’s show was produced by Sara Burningham. Alicia montgomery is vice president of Audio, and Ben Richmond is senior director of operations for podcasts at Slate. We’ll be back with another episode of Amicus in two short weeks. And until then, take good care.