Which wetlands are protected under the Clean Water Act? That’s the question before the Supreme Court in Sackett v. EPA. Back in 2004, Michael and Chantell Sackett purchased a residential lot near the idyllic and popular Priest Lake in Idaho. In preparation of construction, the Sacketts started filling the lot with gravel and sand. But after an anonymous complaint about the dredging and filling, the Environmental Protection Agency ordered the Sacketts to stop construction until the proper permits and assessments were sorted out. The EPA argued that the Sacketts were building on a wetland protected by the Clean Water Act. Instead of securing federal permits, the Sacketts took their case to the Supreme Court for a second time.

This week on Dissent, host Jordan Smith is joined by Sam Sankar, the senior vice president for programs at Earthjustice, a leading environmental law organization. Smith and Sankar discuss the Clean Water Act, wetlands and “navigable waters,” and the powerful interests backing the Sacketts. The outcome of the case, Smith and Sankar warn, could further gut the EPA’s ability to prevent pollution of the nation’s waters and combat climate change.

[Dissent intro theme.]

Jordan Smith: I’m Jordan Smith, a senior reporter for The Intercept. Welcome to Dissent, an Intercepted miniseries about the Supreme Court.

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JS: In the Northern Panhandle of Idaho, nestled below the Selkirk Mountains is a body of water that the state touts as its “Crown Jewel.” Just miles from the Canadian border, Priest Lake is 19 miles long, up to 369 feet deep, and has a surface area of nearly 37 miles. 

The area is home to all kinds of wildlife, including bears and bald eagles. And it’s a popular vacation spot — there’s boating, and I’ve read, excellent fishing. According to the local chamber of commerce, it’s a “magnificent” spot to take in the Northern Lights. It’s also known for its pristine waters.

Idaho Water Resource Board Promotional Video: Dawn breaks on the Northern end of Priest Lake on a quiet July morning, casting a golden glow on the water. A lone Angler Fishes off the point of the new 1,500-foot long breakwater structure, while the water skier carves perfect turns.

JS: In fact, there are four large wetland complexes along the lake’s 62 mile-shoreline that help to keep the lake’s water’s so pristine and its rich habitat intact. One of those wetlands is toward the Southern end of the lake, known as the Kalispell Bay Fen. And it is ground zero for the case we’re going to talk about today, Sackett v. EPA — a challenge to the federal Clean Water Act — the outcome of which could further gut our ability to combat climate change. 

We’re going to jump into all of the specifics of the case with our guest, Sam Sankar, the senior vice president for programs at Earthjustice. Sam has spent his career working in environmental law, including as a trial attorney for the Justice Department. Earthjustice is a leading environmental law organization representing more than 1,000 pro bono clients in cases combating climate change. 

Sam, welcome to Dissent.

Sam Sankar: Thank you. Very glad to be here.

JS: Just to start: Can you give us a bit of background on the Clean Water Act: What prompted its passage, what does it say, and, broadly, what is it intended to do?

SS: So the Clean Water Act is one of the nation’s core environmental laws, most of which were passed in the early 1970s, right after the initial Earth Day and this sort of congressional and national recognition that environmental degradation was becoming a nationwide problem. So it came in there with the Clean Air Act — and a lot of the other laws that we all think of as the laws that are core to protecting our environment. 

What it basically says is that two agencies, the Army Corps of Engineers, and the U.S. EPA, have a responsibility for protecting the chemical, biological, and physical integrity of our nation’s waters. And the trick in all of these things is defining what you mean by the nation’s waters, and that’s what this case is about.

But broadly speaking, what the Act says is, in order to protect those waters, a couple of things have to be true. Number one: You’re not allowed to pollute those waters, if you want — and of course, we all know that lots of people are polluting waters all the time. So there’s a significant proviso, unless you get a permit. So typically, if you’re, say, a sewage treatment plant, you go to EPA, and you say: Hey, we need to treat sewage and we need to get a permit — and the EPA issues you a permit, and says: These are the rules you have to follow in order to discharge that pollution to that waterway. 

And importantly, one of the kinds of pollution that are covered, pretty sensibly, is dredging and filling. So if you are near a waterway and you fill it in, that’s something that Congress cares a lot about — both because it can change the kind of waterway that you have, but also because dredging is a very important form of pollution to waterways, dredging and filling, both.

JS: Great. So, let’s talk about wetlands. We’ll get into wetlands in the Clean Water Act in a minute. But, first, I think, if you could explain the role that wetlands play in protecting our waters and our communities, that would be helpful. 

SS: Sure. Well wetlands are our waters. As anyone who’s spent time on a lake or a river knows, when you get out of your boat near the shore, it doesn’t immediately transform from flowing water into dry land. There’s a huge amount of territory in this country and indeed the world that is in this shifting boundary between deep flowing water — or deep bodies of water — and dry, dry land. And wetlands are waters, right? Wetlands are the parts of our nation’s waters that are closely tied up in the soil underneath — that are right there. 

So you can say that wetlands protect our nation’s waters. But what I would say is that our wetlands are protecting the surface waters, the parts of our waters that we think of as the rivers and the lakes and the streams. And wetlands protect those waters in several ways. First of all, they’re really important buffers for pollution, and sediment. So when you have a rainstorm, or when you have surface water runoff, wetlands trap a lot of the sediment, they collect a lot of that pollution, and they prevent it from entering the nation’s waterways. 

Secondarily, they’re really important because they maintain water flow — so, as we’ve seen all over this country, as climate change is changing our weather patterns and precipitation patterns, flooding and drought are huge problems in this nation. And wetlands are critical buffers for both flooding and drought. And that means when it rains a whole lot, and you’re trying to avoid a flood, those wetlands are absorbing, they’re like a sponge. And in times of drought, where there’s no water, well, the wetlands are releasing that water back into the waterways, which is a good thing. 

And lastly, they’re critical biological parts of the nation’s waterways. So everyone knows that, you know, frogs don’t lay their eggs in flowing water. [Laughs.] If you want to have a healthy ecosystem, you need to have these wetlands be healthy as well, because that’s where our fish and aquatic life — those are critical areas for the biological integrity of free-flowing and open waterways.

JS: So, now let’s talk about how wetlands come into play in the Clean Water Act — how they’re talked about in the act — and then, if you could, walk us through how that language has been interpreted by the Court?

SS: Sure. OK. There’s a lot in that question. 

JS: Yeah. [Laughs.]

SS: And, in fact, inside of that question is the entire arc of this case — and the Supreme Court itself spent two hours talking about it after writing reams and reams of paper about it. So I’ll try to do this at a high level. 

JS: OK. 

SS: When Congress wrote the Clean Water Act, it said that the waters it wanted to protect were navigable waters, but it didn’t really explain what “navigable waters” means. Instead, it actually used a very expansive term: “the waters of the United States.” And so that’s where this acronym “WOTUS” comes from, by the way — so: waters of the United States. 

And it made it clear throughout the act that it wasn’t going to draw, take a Sharpie and draw a line around that, that it was relying on scientists, and experts, and agencies to figure out precisely what that means.

So shortly after that, the Army Corps put out a regulation that expressed a fairly narrow construction of that term that basically said: It’s the traditional navigable waters that go down these — the major stuff. And immediately, everybody said: Wait a minute, this doesn’t work. We passed this law in 1972 because the nation’s waterways were falling apart, the chemical, biological integrity of the waters was really degraded; the image that was burned into public consciousness as the burning of the Cuyahoga River caught on fire. And everybody said, Well, wait a minute, no, no, it’s more expansive than that very narrow, traditional test. 

So the Army Corps went back and wrote new regulations that included coverage of wetlands that said, though, that this term “waters of the United States” includes these waters that are bound up with the shore — the wetlands. 

And relatively soon thereafter, Congress passed some amendments to the Clean Water Act in 1977. And during the course of those amendments, developers and industries pushed really hard. They said: Hey, Congress, rewrite the law to make it clear that the Army Corps and EPA are wrong about this, that wetlands aren’t covered. 

And in fact, they put a bill in, and the bill got passed by the House, but the Senate said: Uh-uh. No way. And: That’s not what’s supposed to happen here. 

And, in fact, what happened was a law got passed to amend the Clean Water Act. And it included language in there that made it very clear that the Clean Water Act was going to protect wetlands. In fact, the Supreme Court said so itself in a case analyzing that language, it said that that new language in 1977 made it unequivocal that Congress meant to include wetlands — and yet. And yet! That doesn’t sit well with a lot of folks. 

So the development industry, and a lot of other industries, have been pushing over and over to get what they couldn’t get in those amendments back in 1977. And since they can’t get Congress to do it, they have been trying a new approach and that is to get the courts to narrow the interpretation of this — to read the very same words differently than courts have been reading it for a long time. 

And so the Sackett case that is going on at the Supreme Court is the culmination, a culmination, of that effort to say: If we can’t get the lawmakers to change the law, then maybe we can get the judges to change the law.

JS: So, I think before we go any further, I am going to give a shop to describe the property at issue in this case, which is owned by Chantell and Michael Sackett, so that folks can — [laughs] — maybe get an image of it in their mind. 

So, the Sacketts’ property is just under two-thirds of an acre and sits 300 feet north of Priest Lake. At the south end of the property is a road that separates it from a cluster of houses along the lakeshore. There are no houses on either side of their property, and just to the north is Kalispell Bay Road. On the other side of that road is a large wetland complex, known as the Kalispell Bay Fen — which included the Sacketts’ property before the road went in. That main fen is still connected to the Sackett property via a shallow subsurface flow of water. 

Also on the north side of Kalispell Bay Road, just 30 feet from the Sacketts’ property line, is an unnamed tributary that carries water from the wetland complex southwest from the Sackett property to Kalispell Creek, which drains into Priest Lake. I should also mention that at the shoreline, by the houses, just south of the Sackett property, are pipes that carry water, and that drains into the lake.

OK! [Laughs.]

SS: For viewers — or listeners, I should say — who are struggling with this narrative explanation, it’s totally hard to understand. This situation dissolved into —

JS: [Laughs.]

SS: — a bunch of words. But you can look at pictures. There are pictures in the record of this case.

JS: Yeah. 

SS: And I think anybody who looks at the pictures of the process when they caught the Sacketts filling this thing in midway — [laughs] you see an awful lot of water.

JS: Yeah. We’ll talk about that for sure. For sure. Absolutely. Because I was going to say, with that description in mind, maybe people can roll it around a little in their heads — but yes, you can find pictures — I want to get into the facts of the case. So I want you to tell us what the question is that the Court is being asked to weigh in on – and how the case got to the Court in the first place.

SS: Sure. So as with all legal questions, as with all good legal questions, this one comes wrapped up in a wonderful set of facts. And that’s how judges do law. Congress writes laws in the abstract, but judges should be deciding cases in very specific instances. And in this specific instance, here, we have this family — or this couple, the Sacketts — and they bought a piece of land in 2004. And they wanted to develop it. And as you said, it was connected to these nearby fans. And I think there’s been a lot of argument about what the status of the land is. We don’t have to describe it any further.

But they bought the land. And three years later, they decided they wanted to fill it in. Now, before they purchased it, about I think in 1996 or so, the prior owners had said: Hey, is this a wetland that’s covered by the Clean Water Act? 

And they’d actually had folks in the government come out and look at it. And they said: Yeah, no, this is covered by the Clean Water Act. And if you want to get a permit to fill it in, this is how you would go about getting a permit. 

And that’s an important fact, right? Nobody said they couldn’t do it. They just said: You need to get a permit. So the Sacketts decided to fill it in without getting a permit. So they got 1,700 cubic yards of gravel, and anybody who’s ever — as I have — tried to shovel a cubic yard of mulch when they were a teenager, and their dad asked to do it — [laughs] that’s a massive amount of fill.

So they’re filling this thing in. And somewhere in the middle of this, this is a very pristine area, and a lake that’s very pretty. And one of the neighbors said: Hey, I don’t know what these guys are doing! And they phoned in a tip. And some folks from the government came out and said: Look, you need to get a permit here. You can’t do it this way. So stop what you’re doing.

And when they came out and talked to them, the folks who they talked to was the excavation company that was actually filling it in, and that excavation company was actually owned by the Sacketts. So the Sacketts were people who were professionally specializing in this sort of work. And one could only imagine that they were pretty aware of what they were getting themselves into by filling this stuff without a permit — anyway! 

They go ahead, and they fill this in, and then they get into a legal battle. They said: We are suing the EPA to say that we can’t be stopped from doing this. 

And that case, which started quite a while ago has wound its way up to the Supreme Court before this. And the first time it went up to the Supreme Court, the question was whether or not the Sacketts could really bring a lawsuit like this at this preliminary stage, right, when EPA had not actually exacted penalties or anything against them. And the Court said: Yes, you can’t. 

And so now what we see is that it’s gone all the way back down to the lower courts, and it’s all the way back up. So we’re 15 years now — 16 years, I guess — after that initial action and the Sacketts are still in the Supreme Court. The case has become a bit of a cause célèbre for those who want to restrict the scope of the Clean Water Act, and a bit of a head scratcher for many of us who want to defend it.

JS: Yeah. I was going to say that I wanted to talk about the Sacketts a little more, and you kind of got to it. I think it’s sort of emphasizing that the property was determined to be a protected wetland back in 1996. And again, when you look at the photos of the site, even with all that fill, there’s water everywhere. Everywhere that they haven’t filled in, it’s just like, water! 

So Justice Sonia Sotomayor raised this in oral arguments in an exchange with Brian Fletcher, who is representing the EPA:

Justice Sonia Sotomayor: Your adversary — the other side, I shouldn’t call them adversary — the other side argued that Mr. Sackett could not tell this was a marshland. Is that true? Because you said the first thing is it has to be a wetland.

Brian H. Fletcher: So I don’t know what Mr. Sackett could tell, and I don’t want to speak to that. What I can speak to is what’s in the record, which is communications from the Army Corps to the prior owner in 1996 saying: This is a jurisdictional wetland, you would need a permit to build, here’s information about how to seek nationwide permits. 

And we also have the pictures of the property that are at Petition Appendix 37 to 39 and also in the Joint Appendix. Now we don’t have pictures before it was filled in with gravel, but the pictures after it was filled in with gravel show that the parts that are not filled with gravel have standing water in them. 

And, also, the Sacketts’ own environmental consultant who came and looked at the property confirmed the Corps’ judgment that these are wetlands. I think it’s also worth emphasizing that although they’re now separated by the larger fen across the street by Kalispell Bay Road, historically, before the road was built, that wasn’t true. It was all part of one wetlands complex, and the whole fen drained down through the Sacketts’ property and into Priest Lake. 

JS: So kind of like what you seem to be suggesting, I find it hard to believe that it would not have occurred to the Sacketts that it might be connected to the fen — and even harder to understand given that they own a construction and excavation company. So one would maybe think that they had run against this kind of thing maybe once before. 

But their attorney, Damien Schiff, disputed that they knew the property was in a wetland before purchasing it. In his closing statements, Schiff was channeling some, like, heavy victim energy – that the Sacketts are being abused by the big mean old government. And it was a vibe that appeared to resonate with at least a couple of the justices. Let’s listen to a bit of an exchange between Schiff and Justice Neil Gorsuch:

Justice Neil Gorsuch: And that is what’s being asked, is a person who purchased a property with a sewer hookup a block from the lake with a subdivision between you and the lake and a road on the other side is supposed to know that that’s a water of the United States, that piece of property, or else what? What are the penalties associated with this? What was threatened to your clients and what does one face in these circumstances?

Damien M. Schiff: Well, certainly, for the Sacketts in particular, they were threatened with significant civil and administrative penalties and, of course, also the continuing liability of having to restore the property to the way it was before they began any work. But, also, there is lingering over all of this discussion the threat of criminal penalties, and I think this is particularly important because the waters of the United States are as much relevant to the criminal portions of the Clean Water Act as the civil portions.

JS: And, notably, other justices were like: All you had to do was ask to know if it was covered – which, again, rather unbelievably, they didn’t appear to do.

Justice Ketanji Brown Jackson was among the justices who thought that was an issue:

Justice Ketanji Brown Jackson: Yes, I just wanted to follow up on Justice Gorsuch’s very fair points, which were my points. How do people know? Is there a process by which a homeowner can ask?

BHF: Yes. Any homeowner can ask the Corps for a jurisdictional determination. The Corps makes those available free of charge.

KBJ: And so you’re not really facing criminal liability without the opportunity to get an assessment from the government regarding your particular circumstances?

BHF: That’s correct.

KBJ: Alright. 

JS: So, there we go!

SS: So — there are so many things to say here. 

JS: [Laughs.]

SS: So in my current job, I run a very large public interest environmental law firm called Earthjustice. But at previous points in my life, I’ve been a lawyer for industry and also for the federal government. And in particular, I was a Justice Department lawyer. And one of the things I did was try to enforce cases like this. And I can tell you that the idea that the government is running around criminally prosecuting people in these situations for truly innocent, accidental developments of these kinds of property is beyond ludicrous. It’s hilarious. You would get thrown out of the building if you said to your supervisor: I want to sue this couple in this situation. 

And to be clear, nobody has ever actually done that. There is an imagined set of threats from these folks. In order to win in a criminal case, you have to show all kinds of intent, mental conditions that you could never prove in the situation that these folks are imagining. 

In addition, as you yourself have pointed out [laughs], right — this is a couple who owned an excavation company. You know what happened here, I think we all know what happened here. They were pretty sure what would happen if they went and asked for a permit, that there would be conditions and there were things they have to deal with. And they did what a lot of people do when they put up a fence next to their neighbor’s yard or when they do something in the city and they hope nobody’s looking — they build a little addition on and they hope nobody notices. And when somebody does notice, and when somebody says: Hey, you needed to do it differently, they claim a whole lot of innocence. 

I would venture to say most of your listeners have been there at least once. Whether it’s at a stoplight — 

JS: [Laughs.]

SS: Or out in the back of your property. And we understand that people do it. But then to claim that in this situation they were completely ignorant is, I think, kind of ludicrous.

JS: Yeah, it would be a little bit like the whole: Better to ask for forgiveness than permission. 

SS: Exactly. Exactly. 

JS: But see here, I think, I don’t know — and this is just me — I think that’s a little too generous. I mean, particularly when you read through the docket for this case, you were just struck by how many amicus briefs have been filed by industry groups – mining, construction, agriculture, like Big Agro! Can you talk a bit about who is backing their position — and, I guess, essentially what they’ve done, right? And about what their interests are or might be? 

SS: Sure, well, the Sacketts are being represented by a law firm that is heavily bankrolled by industry interests. And as you’ve noticed, the industry interests that are filing all these briefs are not innocent landowner couples in the arid West wondering if they will be mousetrapped. No, these are polluting industries that are fully aware of what they’re doing and simply don’t want to have to follow the laws. They don’t want the laws to cover them. Because the scope of the Clean Water Act is really important. If you are a mining company, right now you have to follow laws that require you not to dig up all the wetlands or fill in the nearby streams or do things that cost you money, of course, but protect the rest of us. And if those laws didn’t exist, if the Supreme Court said: Well, this law that has been the same for 50 years is now different, that’s a profitable bonanza for you. Now you don’t have to protect those areas. So the reason those industries are filing all those amicus briefs is not because they have some abstract idea of what should be protected. It’s because they don’t want to have to protect the environment. And if the Supreme Court reduces the scope of the Clean Water Act, there’s less of the environment that the law protects.

JS: In contrast, Earthjustice penned an amicus brief on behalf of 18 native tribes. Can you talk a little bit about that brief and about the tribes’ interests here?

SS: Sure. Well, tribes occupy a special space in environmental regulation. In many cases, the government protects their interests through federal laws. And they rely on the protections of federal laws to protect their both official lands over which they have jurisdiction, the lands where they are sovereigns, but also lands that are historically theirs, and while they may not be under their property, are actually very significant — culturally, historically — for those tribes as well. 

And so what our brief said is that the tribes rely on the Clean Water Act and those federal protections for a lot. This is not an abstract thing to them, and that many states will not protect their interests if the federal government is not there to do it. 

For example, if you are a tribe that is downstream from one of these areas, that’s threatened by mining development, or by oil and gas infrastructure development, and those areas are no longer protected by the Clean Water Act. The water that inevitably comes out of those areas, that comes through those wetlands or that is no longer protected by those wetlands is degraded. 

And under the current statutory framework, that is to say the one that we’ve been operating under for the last 50 years, the tribes have lots of opportunities to actually do something about it — they can comment, they can ask the federal government for intervention, they can do a variety of things to protect their interests. And in this situation that the petitioners, the Sacketts, are envisioning, the tribes would not have that protection. 

And so Earthjustice filed this to say this isn’t just about the states and the federal government: There are important other sovereigns that have been sovereigns over this land for far longer than the federal government and the states.

JS: So can you give me an example of what you mean about how this would all play out for the tribes?

SS: So, for example, one of the tribes we represent, the Pueblo of Laguna, would lose somewhere between 80 to 97 percent of the protections for their waters because the Rio Porco in New Mexico flows through that area. And a lot of those waters in the areas are either intermittent or their wetlands, and depriving those areas of Clean Water Act protection would radically change the situation for the Pueblo of Laguna. There’s places in the Midwest along the St. Louis River where tribes have been harvesting wild rice for centuries, millennia — time immemorial in legal terms. Again, these are areas that would lose protections. And in the Pacific Northwest, along the Skagit River, the Swinomish Tribe, another one of our clients, would lose a lot of wetlands protection that are critical for juvenile salmon, a species and a resource that they’ve relied on again for millennia.

JS: So let’s dip our toes a little bit more into the turbid water of these arguments. [Laughs.]

SS: [Laughs.] There is a lot of opportunity for puns —

JS: I’m sorry, I couldn’t help myself. 

SS: No, no, I don’t blame you. [Laughs.]

JS: OK! So, one thing that sticks out was just so much discussion of the word “adjacent.” And, naturally, what that word means here depends on who you ask. So Schiff was like, well, obviously it means things that touch — especially when you’re talking about quote-unquote “natural features.” 

But a number of the justices were like, ummmmm, that doesn’t even match the common definition of the word.

So, here’s an example of that dynamic in an exchange between Schiff and Justice Elena Kagan, with a little Justice Ketanji Brown Jackson at the end:

DMS: However, the example that I was going to give is, if I were to say that I own two adjacent parcels of land, I don’t think anyone would just simply think that I meant I own two parcels of land in the neighborhood, that that necessarily implies that they’re physically touching, and it’s that particular —

Justice Elena Kagan: Well, let me give you another example. I grew up in an apartment building in New York City. If I say there are two adjacent apartment buildings, do they have to be touching each other, or it could be, you know, one is across a side street, you know?

DMS: Again, Justice Kagan —

EK: I mean, I would say that those two apartment buildings are adjacent to each other because there’s no other apartment building in between them, even if they’re not touching each other.

DMS: Again, Justice Kagan, I would say that when we’re speaking specifically about physical, topographic features, natural features like wetlands and other water bodies, I think that physically touching requirement is essential and is the meaning of adjacency as used in 404(g).

That is, in fact, actually —

KBJ: But, Mr. Schiff, isn’t the issue what Congress would have intended with respect to adjacency and there was a regulation that defined “adjacency” to include neighboring? And as far as I know, Congress used the term “adjacency” and didn’t adjust it to try to make clear the touching requirement that you say was intended by the term.

JS: Would you like to talk a little bit about adjacency? [Laughs.]

SS: Oh man. [Laughs.]

Well, let me talk about something even more general, which is the difficulties of doing these sorts of complex environmental judgments in a courtroom without pictures, right? Because there they are in the Court, they don’t have the pictures, they can’t talk about [it] — far removed from the situation where you have a bunch of people with law degrees, and who have to make adjacency analogies using apartment buildings in Manhattan —

JS: [Laughs.]

SS: — talking about how this law should be interpreted. Well, Congress knew how it wanted to do this, which is to give the agencies these judgments. And instead, what’s happening is because of the way this Court is approaching the case, everybody is trying to figure out what one word means. And what Justice Jackson is pointing out is, Congress was trying to do something with this big law. Can we just focus on what they were trying to do? The rivers were on fire, wetlands were being lost at this incredible rate, all of this stuff was happening — can we interpret these words in light of those things rather than trying to figure out what they mean by looking at apartment buildings in Manhattan? 

JS: [Laughs.] Right. 

SS: Like Justice Kagan is not saying — she’s trying to illustrate that these words have slippery meanings.

JS: Right. 

SS: And that trying to pin them down without thinking about what Congress was trying to do and what the nation needs is a fool’s errand and one yet that this Court, and certainly the petitioners in this case, seem interested in doing.

JS: Yeah, I mean, I guess the language in the statute is something like: “wetlands adjacent thereto” — correct? Isn’t that right? The portion that they’re talking about? Which is these wetlands that are adjacent to these navigable waters — and it’s all bound up in the waters of the United States or WOTUS. 

So I did find [laughs] — I was just like, oh, my God, I don’t think I ever want to hear the word adjacent ever again. 

SS: Yeah!

JS: Because I mean, I felt like — well, we can talk a little more about this, but I felt like Schiff was just sort of winging it, right? Like: This is what adjacent means. [Laughs.]

SS: Well, he’s winging it, because it doesn’t make any sense. 

JS: [Laughs.]

SS: And he knows it. And what’s tricky with these textual things — these hard, bright-line textual arguments — is even when you come up against hardcore textualists, people who are really interested in the words, people like Justice Kavanaugh, and Justice Barrett, and Justice Roberts will say: Look, if it can only mean one thing, it doesn’t make sense, right? So under your definition, this would happen. And wait a minute, even the Trump administration didn’t want to do what you wanted to do. Right?

JS: Right. 

SS: And so Mr. Schiff really struggled to try to put a persuasive position together in terms of legal strategy; what that did was open up a big middle space for what could be the rule here, which is never really what you want to do as an advocate, because he didn’t even really want to play on what other rules that could be put in. 

JS: Yeah. Well, let’s talk about Kavanaugh and Barrett here for a second. Because I felt, broadly speaking, it felt like some justices would be happy to dismantle the science, the expertise, that’s baked into the CWA, while others – and Kavanaugh and Barrett come to mind – seemed more skeptical of Schiff’s position. And, at one point, to your Trump point, Kavanaugh says: Well, why is it that seven prior presidential administrations have disagreed with your position? 

So let’s hear a bit of that exchange:

DMS: — definitional —

Justice Brett M. Kavanaugh: Last question, why did seven straight administrations not agree with you?

DMS: Well, I wouldn’t quite say it’s seven straight. At least under the Trump Administration, their proposal was certainly closer to what the text —

BMK: Wait. No, let’s be clear. They said that it would still be covered even if it was separated by a berm or dune, for example.

DMS: No, that is correct, and —

BMK: And under your test, that would not be covered?

DMS: That is correct, Justice Kavanaugh. And I don’t presume to know more than those seven prior administrations, but what I do know is what is the text that Congress has used, and nothing can supersede that.

BMK: Thank you.

JS: Although, I guess you are presuming, right?

SS: Yeah. Exactly. I wouldn’t presume to know more —

JS: However! [Laughs.]

SS: However, my client presumes that he doesn’t like — or they don’t like — what’s going on here. 

JS: Right. 

SS: Look, what you’re seeing there is exactly what I talked about.

JS: Right.

SS: Justice Kavanaugh is saying you have this very bright-line test. And it seems to create some really not-sensible results. And this, this problem with this bright-line test is what this Court is over and over and over getting itself into by focusing so excessively — not excessively — focusing so intently on the text, and really refusing to consider what experts scientific agencies are saying about how these rules should work. 

The modern Supreme Court is really anti-agency — frankly, it’s anti-science — and it is struggling to make sense of these complex environmental laws, because it’s trying very hard to do it in a purely legal way without considering context, facts, science, and reality. 

JS: Yeah. And while Kavanaugh is saying: Well, wait a minute — there were other points where he and others seemed to be feeling something for the Sacketts, right? 

SS: Oh yeah!

JS: It’s like — we have a clip of Kavanaugh again, talking with Fletcher:

BMK: But the text doesn’t say in referring to adjacent in 1344(g) whether that means bordering or contiguous and stop there or also include neighboring, as the regulation does. And as I understand, the case really, as your brief set it out, comes down to, okay, what about a wetlands separated by a berm or dune or by a dike or levee? And on that question, I suppose, since Congress hasn’t specified that it goes that extra step, why not let Congress figure out where the line is? I mean, I think that’s the toughest hurdle you face, is that Congress — we’ve gotten, as Justice Alito says, from waters to adjacent and now from contiguous or bordering to also neighboring, and shouldn’t that be Congress’ job? So what’s your general response to that?

BHF: So I think, if you look at 1344(g) in context, Congress has answered this question.

We think you’d get there past just directly abutting and to neighboring on the dictionary definitions alone, the definitions we cite at page 22 of our brief, but I don’t think you need those here because of the history against which Congress acted.

JS: So, in other words, I feel like he is trying to thread the needle, right, a little bit — perhaps? I don’t know. I want to know what you make of all of it. And also, more broadly, what struck you about the arguments.

SS: So Kavanaugh’s entire approach to this is one that would not have been an approach of the Court — certainly not a majority of the Court — 20 or 25 years ago. That Court would have said: Well, it’s clear what the Congress is trying to do here, we’re not going to obsess over this or that. We’re also going to think about the history of the statute; we’re also going to think about the background facts against which Congress was regulating. 

And Kavanaugh talks a little bit about that. But this kind of Kabuki dance about dictionary definitions and micro-parsing of when this happened and when that happened is a very new model. And it is a very pro-industry model of reading statutes. Because the more narrowly you are parsing these things, and the more you insist that judges make the decisions — and not the scientists, and not the experts in protection — the more you’re going to end up protecting only what the industries want to protect. 

JS: On that, it seems like a decent time to circle back to something you said earlier, which is that just because the Sacketts’ property was considered a protected wetland under the Clean Water Act, does not mean that they cannot build there at all. Right? 

So this brings me to a question — or maybe two — about the role of the federal government versus the state governments where clean water legislation and regulations are concerned. Because there was a lot of that [speaks in a robotic voice] federal-government-regulation-bad-energy going on during the arguments. And then there was like the suggestion at times that perhaps it would be different if the states had more control. 

And I think — [laughs] — I don’t know that if that were the case, there would be a reason to think these challenges went away. So what I’m hoping is that you can tell us about the various roles that the feds and the states play here. And is it reasonable to buy into this notion that if the states were the ones taking the reins that the Sacketts, and the groups that support them would just be completely jiggy with those state environmental regulations?

SS: Well, first of all, the many industries that are on the side of the Sacketts are not big fans of state regulation. In fact, they are busily arguing in the case of the Clean Air Act that states like California can’t have their own regulations about air quality or tailpipe emissions of cars — that kind of state regulatory authority is inconsistent there, as soon as the states want to do something a little stronger, they say: No, no, no, you can’t. 

Similarly, it’s important for all of us to remember that the reason the Congress passed the Clean Water Act in 1972, was before that, it was the states who were in charge of protecting waters. And it was a disaster. It was a disaster. The reason Congress passed the Clean Water Act is because empirically, it had failed, leaving it to the states. And also, structurally, it’s not surprising, right? States don’t have a whole lot of reasons to protect the water that goes downstream to other states. They also have a race to the bottom where the state that puts the least environmental regulations in place, probably gets the most industries to move in there. So there’s a whole lot of structural reasons why federal protections matter and make a lot of sense. 

Additionally, one thing that these folks talking about state regulation will not want to talk about is the fact that most of the Clean Water Act is actually administered by states. That is to say it’s a federal law. But states actually run the programs, and the states really like to run the programs, and they can run the programs. 

In some areas, however, whenever they take them over, the federal government kind of has to supervise this because many times the states don’t really want to actually do it. They want the money for the regulatory programs, but they don’t actually want to protect things. Again, there’s a lot of pressure from local developers. There’s a lot of pressure to race to the bottom and to not worry about downstream states. 

So there’s a tremendous amount that is left to state regulation — for example, most agricultural pollution, water pollution, is not at all covered by the Federal Clean Water Act. Most of that is left to the states — not most, all is really left to the states. And that has been a disaster; most pollution of our nation’s waterways in the dead zone in the Gulf of Mexico and all sorts of other things are the result of agricultural pollution that hasn’t been handled by the states. 

So anyway, when folks are saying: We want state regulation — that’s actually code for: We don’t want regulation. 

One more thing, I would be remiss in failing to mention here. Many states have laws prohibiting them from putting in regulations that would protect these things. Many states, their own legislatures have said: If the federal government doesn’t protect it, we won’t protect it either. So again, states rights — [laughs] — just as it was with the Civil Rights Act, is in fact code for no regulation, no laws.

JS: Throughout this Dissent miniseries, we’ve talked a lot about how the Court really sets its own agenda. And one of the startling things in this case is that the Court took it while agencies were in the middle of making new rules, which seems bonkers to me. 

Justice Elena Kagan made a point of acknowledging this:

BHF: The 2015 rule, as we discussed, tried to draw some bright-line rules. Those were criticized as arbitrary and over-inclusive, which is the problem with bright-line rules, that they’re over-inclusive or under-inclusive. But I certainly think there is a range of reasonable understandings of what adjacency means, and also I know you’re focused on that, but significant nexus too.

EK: Did I just understand you to say that the rule that you’re issuing may, in fact, have more guidance than we currently have as to what “adjacency” means?

BHF: I don’t want to represent what’s coming in the forthcoming rule because it’s not issued yet. And, by definition, the agencies haven’t finished their deliberation. I will say they’ve sought comment on how to cache out, how to crystallize, this significant nexus test and the adjacency framework that it is a part of. And they’ve also said that even after this rulemaking, they are interested in –

EK: When is the rule-making coming down?

BHF: So it’s with OMB now. It’s public that in September it went over to the Office of Management and Budget for interagency review. The agencies have told me that they still expect to issue it by the end of the year. 

JS: So you have subject-matter experts, scientists, working on updated rules. And then you have the Supreme Court pluck this case and put it on its docket. So, maybe you can talk about that and how it fits with this agenda-setting theme, and what it means for the Court to be taking this case on now, knowing that rule-making is going on.

SS: Look, this is the clearest sign ever, that what we have with this conservative supermajority right now is a highly aggressive deregulatory Court. Because a Court that was just trying to get it right, and just trying to offer stability to regulated parties, to have the machinery of government work well, would never have taken this case, while the government was on the brink of issuing new regulations in this area. 

That is totally contrary to the understanding of the way the Supreme Court is operated. And that is something that everybody learned in law school when I was in law school, and I think is still being taught in law school, but they’re now throwing asterisks up on that all the time. Why does it matter to wait until the other branches of government have their say? Well, that’s because the other branches of the government can do science, the other branches of the government do policy, the other parts of the government can wade through all of the potential consequences of reading law in one way or the other, and offer those judgments up in sophisticated legal regulations. 

And when the Supreme Court hears one case, and reads a word like adjacent and tries to make sense of it from the dictionary, and rules before the government comes out with an explanation of this, it means that it’s taking power away from our policy branches, and grabbing them to these unelected judges who sit on the Supreme Court. That is the line — that is precisely the line — that the conservative movement used 30 or 40 years ago to complain about judges taking power away. But now that they’re in a situation where the country is largely in favor of environmental protections and doesn’t want to see these laws changed, they’ve gone to the courts. And they’ve gotten themselves a hyper-conservative Supreme Court that is willing to do these things. And this Court doesn’t need to see those regulations, because this Court, at least many of the justices, don’t care what the science says.

JS: Well, and also the swooping in amid rule-making, isn’t that also what happened with the Clean Air Act case that they took up in the last term? Isn’t it the West Virginia case?

SS: That’s right. 

JS: I’m sensing a theme! [Laughs.]

SS: [Laughs.] Well, the Court is incredibly eager to put its stamp on this country. And when I worked at the Court, like I said, 20 years ago for a woman named Justice O’Connor, who had a profoundly different vision of the role of the Supreme Court in American society, which is one that issued rulings as infrequently as possible, and in as restrained a manner as possible, recognizing that when the Court answers something, debate stops; that it doesn’t really allow for the rest of government to be engaged. And she recognized that we make mistakes all the time. And once we write an opinion about this, it’s hard for us to undo those mistakes. 

This Court doesn’t feel that way. It feels that it knows what it’s doing. And it can’t wait to do the things it wants to do. And one of the things that it clearly wants to do is restrict the role of the federal government in protecting the health and welfare of people.

JS: Yeah. And just as a side note, it sounded in arguments like those new rules were imminent. Have they been released?

SS: They were released at the end of last year, in December. 

JS: Oh!

SS: And the federal government, the EPA, sent a polite note into the Supreme Court that said: Well, as Mr. Fletcher predicted, we did actually get these rules out. And we’re unsure of what to say to you. It didn’t literally say that — [laughs] — but geez, maybe you should take a look at these. But I guess you really can’t, because you said that you took the case and the regulations aren’t there — so it creates a real problem, because now we have new regulations that are out, that are the law of the land. And we have a Supreme Court case that is reviewing a situation from before these new regulations came out.

JS: I mean, I don’t know if there’s a way to even summarize it, how different the rules are or if there’s any significant change in the rules?

SS: Yeah. So before the Obama administration, everybody was operating on a set of regulations that were generally referred to as the 1986 regulations. And those were sort of the law of the land that had been the case for since the Clean Water Act was created. 

In 2015, the Obama administration issued new rules that would have clarified and expanded the scope of this a little bit. Those rules were immediately enjoined. The Court said: No, no way, we want to look at these more carefully. 

In the meantime, the Trump administration came in, put out an extremely narrow rule for what would be protected — although, as you said, not as narrow as what the Sacketts want, but a very narrow rule; that rule, too, got enjoined in a case brought by Earthjustice because it just didn’t follow the text of the act at all. And now we have a new Biden rule. 

And in summary, what I would say is the Biden rule is significantly more conservative in its reach than the Obama administration’s rule. It strives to kind of make sense of this adjacency wording, and it strives to honor the intent of Congress to protect the chemical, physical, and biological integrity of the waters by trying to make clear that what we need to protect are the wetlands that have this close relationship with the surface waters that we all think of as being most obviously protected. So it includes a ton of context-sensitive stuff about how to figure that out; as we’ve pointed out, it talks about the resources that people have in order to figure out what is covered and what isn’t. It’s very deeply scientifically based — and in fact, if you went through and read all the science that it’s based on — it’s just a colossal record of information that the agency reviewed and tried to come up with this rule. 

JS: You were a guest last year on Strict Scrutiny, and something you said stuck with me. It was essentially making the point that environmental laws are often written broadly and that they need to be written that way. 

I’m more used to, in my daily work life, of thinking about laws like penal code violations — [laughs] — which are pretty specific. So could you talk about why environmental laws are written the way they are and why that matters?

SS: Sure — first of all, we’re learning more about the environment every day. And our understanding of what threats are out there today is very different than the understanding of Congress from 10 or 15, let alone 50 years ago. We have threats that we’re facing now to water that weren’t clearly in the minds of Congress back then. There are chemical compounds that chemical companies are creating and putting into the waterways that didn’t exist back then. 

So if Congress had said: This is the list of pollution that is not allowed, the pollutants that you aren’t allowed to put in them — they would have missed a ton of things. 

So they said: Here’s what pollutant mean — and the definition of pollutants, by the way, in the Clean Water Act is enormous. [Laughs.] It’s basically anything you put in there. 

And it’s written that way, because of two reasons. One is the Congress knew it couldn’t predict exactly what was going to need to be protected in the future. And number two, there was this important entity in between Congress and the public. And that is these regulatory agencies. And the regulatory agencies are the ones that review the science, that conduct the studies, that pay for more science to be done to figure out how to actually implement these laws in a sensible way. 

And, of course, those agencies aren’t, you know, running off completely on their own. They’re run by political appointees. So the people who are running those things are people who are selected by elected officials. And there’s very much political control over this. And Congress also can say — can step in and say: Hey, wait a minute, you the agency aren’t getting it quite right, we are going to rewrite the law in a certain way to fix things — which they did in 1977! So writing laws in a broad way gives scientific experts flexibility to write regulations that reflect what’s on the ground. And it allows those laws to serve future generations and to give you real protections for the environment, where very specific and narrowly worded things would need to constantly be updated — every year, if not every day.

JS: Yeah, well, it doesn’t seem that this 6-3 supermajority, super-conservative Court really likes this broad writing [laughs], because it maybe doesn’t fit with their sort of philosophy. I’m just kind of curious — it seems that they just kind of hate it. And maybe it has to do with the fact that they hate the regulatory state. Or I don’t know! This Court in particular — I mean, they don’t seem to like broadly written laws like these. And so I’m just kind of curious if you have any thoughts on that?

SS: Well, the Court has this broad animus — these judges were selected for their adherence to a philosophy that these unelected bureaucrats and EPA have no business deciding how these things should be done. Instead, these unelected judges, who are completely unaccountable politically, should be the ones deciding how these things get done. 

So there’s a real hostility in this Court to the idea that scientific judgment, expertise, and process outside the courtroom or Congress should be a part of our nation’s regulatory structure. And that’s a profoundly deregulatory worldview, right? That’s profoundly one that leads you to a place where industries have more latitude and where protections get pulled back. And that’s why it’s always a one-way ratchet downwards when you have that kind of a view.

JS: And where the Cuyahoga River is suddenly ablaze again!

SS: That’s right! And this isn’t a great direction for the Court to be taking. And we’re not just seeing it, right, in the Clean Water Act: We’re seeing it in COVID protections; we’re seeing it in voting rights protections; we’re seeing it across the board, where the Court is pulling back on the role of protections in the government for people.

JS: So to end, I’d like to back up and get a broad view about what’s at stake in this case. 

So maybe first, you could lay that out in terms of immediate impacts. 

But then second, could you put it into the context of the climate crisis, and how what happens here might impact our ability to address climate change?

SS: Sure. Well let’s step through those from the bottom up.

So I would start by saying that in some of the worst case scenarios that one could imagine if the Supreme Court wrote its opinion in certain ways: Up to 45 million acres of wetlands could lose protections in this country. So 45 million acres of wetlands that you couldn’t pollute — you can’t pollute today — you suddenly could pollute. People could just say: Well, I can fill it in, I can pollute it, I can do whatever I want. 

Next level: As climate change stresses our environment, removing the protections for all those wetlands, smaller waterways of all kinds, becomes all the more problematic, because we know that all these environments are deeply stressed by climate change already. We know that flooding and drought are becoming an increasingly big problem. So by taking away protections for waterways and wetlands, you’re exacerbating the scale of the climate crisis, right?

And then, at the third level, in order to combat the climate crisis, we’re going to need strong environmental laws and regulations. And we’re going to need expert agencies, figuring out how we can make all these things happen. How can we reform our transmission grid? What kind of pollution is okay? What kind of standards are not? How do we figure out how to reduce emissions from all kinds of different things in ways that are going to help us survive as a species, as a nation, as individuals. And if you have a Supreme Court that is profoundly anti-regulatory, you make it much more difficult for the government to actually do what most people want, which is confront those problems. More than three in four people support federal protections for water. Most people want the federal government to do more about climate change. And the Supreme Court is going in the other direction, taking the government out of the game at a time when it needs to be most in it. 

JS: Sam, thank you so much for joining me.

SS: You’re more than welcome. Thank you for doing this. Anytime somebody wades into the Supreme Court, environmental law, whatever, I’m always eager to help out, because this is not easy stuff. [Laughs.] And it’s really important. But some issues like abortion or voting or whatever, people can naturally understand — you don’t need to read the law to understand what’s going on. But on things like this, somebody like you, you really have to dig in to kind of figure out what the questions should be, read the argument, try to figure out what the heck is going on. So I appreciate that you did that.

JS: And that’s it for this episode of Dissent, a production of The Intercept. 

This episode was produced by Jose Olivarés and Laura Flynn. Roger Hodge is editor in chief of The Intercept. And Rick Kwan mixed our show. 

If you’d like to support our work, go to theintercept.com/join — your donation, no matter what the amount, makes a real difference.

If you want to give us feedback, email us at podcasts@theintercept.com. Thanks so much.

Until next time, I’m Jordan Smith.

The post Dissent Episode Six: The Clean Water Act Comes Under Attack appeared first on The Intercept.

Rodney Reed has been on death row since 1998 for the killing of a 19-year-old woman named Stacey Stites. Although Texas prosecutors said the case was open and shut, Reed has consistently maintained his innocence. Over the years, dozens of witnesses have come forward with evidence that undermines the state’s case, casting serious doubt on whether Reed is actually guilty. But Texas has refused to conduct DNA testing that could put lingering questions to rest. This week on Dissent, host Jordan Smith is joined by Intercept senior writer Liliana Segura to discuss the Supreme Court’s review of the case. Segura was in Washington, D.C., for the oral arguments, which focused on whether the statute of limitations for DNA testing has run out. Although it may seem like a straightforward question, it’s anything but — and the court’s decision could have life-or-death consequences for defendants seeking to prove their innocence.

[Dissent theme music.]

Jordan Smith: I’m Jordan Smith, a senior reporter for The Intercept. Welcome to Dissent, an intercepted miniseries about the Supreme Court.

Frank Somerville [KTVU Fox 2]: New at 10, in San Francisco tonight, a candlelight vigil was held in support of Rodney Reed. He is a Texas death row inmate who was granted a stay of execution. 

Victor Blackwell [CNN]: After more than 20 years on death row, Rodney Reed’s case is getting a second look.

Amy Goodman [Democracy Now!]: Reed’s attorney says a new investigation has uncovered evidence Stites was actually killed hours before state prosecutors claimed. The new timeline appears to implicate her fiancé Jimmy Fennell, a white former police officer, now in prison for sexually assaulting a woman.

[Low, percussive beats.]

JS: For the last two decades, I’ve been covering the case of Rodney Reed, a Black man on Texas’ death row. Reed was sentenced to die in 1998 for the murder of a white 19-year-old named Stacey Stites. Two years earlier, Stites was found dead on the side of a country road just outside Bastrop, a small city just east of Austin.

Chris Hayes [MSNBC]: Stites had been reported missing earlier that morning after she didn’t show up for her early morning shift at the H-E-B Grocery in Bastrop.

JS: Reed was linked to the murder by DNA evidence recovered from Stites’ body. It was the only thing linking him to the crime. At his trial, prosecutors called this evidence the “Cinderella slipper” of the case. They swore that Reed and Stites were strangers and that he had somehow waylaid her on the way to work early that morning, and then raped her and strangled her. 

Reed has always maintained his innocence and has said he was having a clandestine affair with Stites, which explained the DNA evidence. Over the years, an overwhelming amount of evidence has emerged, backed up his story, and has cast a harsh light on another suspect, one the state has virtually ignored: Stites’ fiancé, a man named Jimmy Fennell, a white cop from a neighboring town.

CH [MSNBC]: Police find a red pickup truck in a parking lot behind the local high school. A truck belongs to Stites’ fiancé, Jimmy Fennell, a Giddings police officer. He tells the Bastrop County Sheriff’s Department that Stites drove that truck to work. Jimmy Fennell then sits down with authorities to give his account of the previous evening.

JS: Dozens of witnesses have come forward with new information. Some have said that Reed and Stites did know each other. Others have said that Fennell and Stites had a troubled and violent relationship — that Fennell had found out about her having an affair and was furious about it. 

Despite all of this, Rodney Reed has faced execution multiple times over the past several years. His case is now before the Supreme Court. So I sat down with my friend and colleague Liliana Segura, who is also a senior reporter for The Intercept. And she’s also followed the case closely and was at the Supreme Court back in October for oral arguments:

Liliana Segura: I just wanted to sort of back up and pause for a second to say that Jordan’s reporting on Rodney Reed’s case, going back some 20-plus years, has really been critical to exposing a lot of this new evidence that we know about today. She’s really a big part of the reason that Rodney Reed today is one of the most well-known people on death row in this country. 

I first came to know about Jordan’s work on this case, long before I met Jordan, sometime in the early 2000s. I had met, at that time, anti-death penalty activists in Texas, who were fighting alongside Reed’s family to keep the state from executing him and insisting to anyone who would listen that he was an innocent man. And Jordan, to her credit, was really one of the only journalists who had seriously considered what they had to say early on. 

So I came to this case through the advocates who were connected to Rodney Reed’s family. And I remember his mother Sandra saying that she had been aware of her son’s relationship with Stacey Stites; among their family members, this was sort of an open secret. But it was also incredibly dangerous for a Black man to be involved in this way with a white woman who was engaged to a white cop. 

If you know anything about the history of the death penalty in this country, especially in the South, you know that this is a punishment that is inextricably connected to lynching, which was a form of vigilante violence that was justified as a way to protect white women from Black men. 

The last time we talked about Rodney Reed’s case on Intercepted some years ago, we discussed this history. So for anyone who wants to understand this context, which is really critical to this case, I would encourage folks to go back and listen. 

But, like I said, Rodney Reed has faced execution multiple times. And as he’s fought his case in the courts, he has repeatedly appealed to the courts, including to the Supreme Court, and asked them to intervene. 

So Jordan, maybe you can explain a little bit about what some of this past litigation has looked like, and how Rodney Reed finally got to the Supreme Court on October 11 of this year.

JS: You know, this is a lot of backstory. But it’s really important because it explains how many times he’s tried to get to the Court, and how many times his bid has been sort of rejected. And it also is important to understand, because the way that he gets to the Supreme Court now is in this really sort of narrow, technical way. 

So in Texas, there is a law called Chapter 64. And it governed post-conviction DNA testing. And that’s the law that Reed has been trying to avail himself of to get all this crime scene evidence tested. But the problem with the law is not the law itself, it is with the courts that interpret it, and particularly the Texas Court of Criminal Appeals, which has had a super long and antagonistic relationship with Chapter 64 — and really, with a lot of criminal defendants in general, especially those with claims of innocence. [Chuckles.] But that’s a whole other story, I suppose. 

Anyway, when a defendant asks for testing, if they get denied by the trial court or approved by the trial court, either way, it’s going to appeal, it’s going to go to the Court of Criminal Appeals. And what the Court of Criminal Appeals has done is take this law and interpret it as narrowly as possible, such that most defendants can’t even access testing. And that’s happened over and over again. And it’s actually forced Texas lawmakers to go back into the legislature and revise the statute a bunch of times trying to make it clear — to be clear, there’s nothing wrong with a statute, it’s the court, right? So they’re trying to make it clear: No court, we don’t want you to do X, Y, or Z. 

So when Reed goes to court, this is in 2014, he’s asking for this stuff to be tested. And the state just sort of throws up its hands and is like: ‘No way we can’t do that.’ And they invent a reason why. And the reason — they say — is because this crime scene evidence — critical crime scene evidence — has been stored improperly, essentially commingled, like items of evidence stored together. And the other problem they raise is that people had touched the evidence at trial, including prosecutors, without gloves on, meaning there was probable contamination, in their mind, with DNA sort of being contaminated and creating impossible mixtures that would be too hard to sort out to have any probative result. And so he gets denied. 

And it kind of goes back and forth between the trial court and the CCA for two years. CCA sends it back to the trial court in 2016, then it goes back up to the CCA, and the CCA in 2017 ends up being like: You know what? You’re totally right, this contamination thing is a complete issue. And the statute says you can’t have contaminated evidence. 

Well, the only problem with that is that the statute doesn’t say anything about contaminated evidence. And more to the point about that, a lot of jurisdictions, and a lot in Texas, store evidence commingled, right, and have over the years. I think, in certain places, things are getting better now. But people still routinely touch evidence without gloves on at trial. And people still routinely bundle evidence together when it’s being stored. And that’s on the state, because it’s their responsibility to maintain this stuff. So denying them because of that — denying DNA testing because of that — is a little bit ridiculous. 

But also, it’s really not that big of a problem. Because it happens a lot, DNA testing labs are actually used to having evidence that’s been commingled. And they actually have statistical tools and programs now that can try to tease out this probative DNA evidence, right? [Apply a] profile that might be of importance. 

And then here, really, we’re not looking for some rando. We’re looking for Jimmy Fennell to see if he is there. Anyway — but the court said: Nah, it’s been contaminated. And again, like I said, it’s not in the statute. So that’s, again, the CCA going outside the four corners of the statute to come up with a reason to deny the testing. And it’s that that really gets us to the Supreme Court. 

And this is like a little tiny bit more in the weeds. But there’s one little more piece of this: The Supreme Court has said years ago that there’s no right to post-conviction DNA testing. But what they’ve also said is that if a state is going to make a process for post-conviction DNA testing available, it has to be administered fairly. So if you don’t think that the state has been administering its DNA testing procedures fairly, you can then go to federal court, and you can file a civil rights suit, saying that this statute or the scheme is being interpreted in an unfair manner that’s denying you due process. And so that is what Reed ended up doing — after the CCA finally weighed in and said the contamination was a problem. 

So that’s how he gets to federal court.

LS: All of this context that you’re talking about is so important because it shows not only the sort of technical, legal posture that Rodney Reed has been in that has ultimately led to this, but it also shows just how maddeningly lengthy and complicated, and it is just this sort of mind-numbing process by which somebody ends up before the Court. It’s not actually about how meritorious the question is; it’s about any number of different factors that come together to happen to allow a person to make their case. And in this case, I mean, one thing that I think about, as you lay out some of this history is that Rodney Reed had asked the Supreme Court numerous times to take up different questions in his case, [laughs] including the very relevant question of whether it is constitutional to execute an innocent person — and that feels like an absurd question to be sort of posing in a legitimate legal setting. Of course, it shouldn’t be right to do that or allowable. Rodney Reed has tried so many times to try to bring different elements of his case, and the fact that it ended up being this very technical, narrow question that you’re talking about, just sort of shows the arbitrariness of what cases do get taken up. And at this particular moment, with the Supreme Court being what it is, there’s just no guarantee about how this is going to play out.

JS: Here is the technical situation that is before the court, it is: The state of Texas, said that this federal lawsuit Reed filed should go away, it should be dismissed, because they say he filed it too late. And so the argument is; When should he have filed it? Should he have gone to federal court and filed his civil rights claim back in 2014 when the trial court denied him? Or should he have done it in 2016, when the trial court made some sort of updated findings at the request of the CCA? Or should it be some time in early 2017, when the CCA first denied his claim? Or — [laughs] — should it be towards the end of 2017, when, after Reed had asked them to reconsider their case, they basically were like nah, and that is ostensibly what closes that whole chapter in state court? 

Now, according to the state of Texas, any of the first three dates would be the appropriate ones — just not the last one. Because if the last one is the one that really counts, then Reed did file his suit on time, right? So there’s a two-year statute of limitations on when you can file this kind of federal lawsuit, at least if you’re in Texas. And so the first three dates, the one in 2014, the one in 2016, or the one in early 2017, would mean that the state wins and Reed gets bounced from federal court and ostensibly loses any meaningful ability to ever test this evidence. But if he did the right thing and waited until the whole state court process was over — so the statute of limitations would start running at the end of 2017 — then he totally filed in time and he should be good to go. So basically, what the Supreme Court is here to decide is: Which of these dates is the dates that Reed should have filed?

LS: One thing that’s important to note about Reed’s journey to the Supreme Court and how many times he has unsuccessfully asked the Court to review the problems in his case, in 2020, Justice Sonia Sotomayor issued a very powerful dissent from the Court’s refusal to consider his case — and it’s really worth reading in full. But she highlighted some of the really profound questions that had been raised over Reed’s guilt over the course of these past 20-some-odd years, and really kind of called out Texas courts for refusing to confront them. And we included a part of what she wrote in our piece that we wrote after this oral argument, but I thought it was worth quoting at least part of what she said: “Reed has presented a substantial body of evidence that, if true, casts doubt on the veracity and scientific validity of the evidence on which Reed’s conviction rests.” She went on to write: “There is no escaping the pall of uncertainty over Reed’s conviction.”

So those are really powerful words. And this comes some, what, two years before the court finally gets ready to hear this case? So the fact that this question of innocence isn’t even the question before the court, it’s just one of those disconnects that is hard to wrap your head around when you truly understand and appreciate the stakes of what they’re actually talking about, rather than these deadlines, these absurd technicalities that ended up being litigated when the day finally arrives.

JS: Yeah, and I would say on that note, I think you should pick it up there because it was kind of an interesting day at the court. And you actually got to be there. Maybe you could tell us a little bit about how that day went. 

[Low music, and the sound of heels against the pavement.]

LS: So it’s Tuesday, October 11. There is a line around the corner of people waiting to get in to attend oral arguments. And this is the day that Rodney Reed’s case is coming before the Supreme Court.

LS: So I arrived at the Court probably a little bit after 9 o’clock. The scene outside the court was familiar in some ways: There were protesters, there were lines of people, there were tourists passing by, kind of taking it in. 

But one of the first things you saw when you walked up was a group of activists who were all wearing matching shirts and holding up these bright red signs and holding this huge black banner that said: “Rodney Reed is INNOCENT.”

Speaker: We ask just now that you would enter the hearts and minds of the justices who operate in the building behind us, move within them, oh God, a sense of justice and a holy sense of respect of life — respect of this brother’s life in particular, who happens to be innocent of the charges he was convicted on.

LS: And these activists were affiliated with an organization called Death Penalty Action. They have been protesting or rather they have been organizing around the death penalty for a long time and are very supportive of Rodney Reed and his family. 

So when I walked up, they were there, holding up their banner; there were speakers; there was some singing; and eventually, members of Rodney Reed’s family showed up and addressed some of the people who had gathered there. There was Rodney Reed’s brother, Rodrick Reed, who has been the most outspoken advocate in recent years, talking about his brother, being wherever he needs to be to advocate for him.

Rodrick Reed: Thanks, y’all, from the bottom of our hearts for coming out and praying and standing with us — not just today, but over all these years, you know?

LS: There was also Sandra Reed, who is Rodney Reed’s mother, who is getting on in years but has always, always been out front telling her family story and insisting that her son is innocent. 

And there was also Rodney Reed’s nephew, R.J., this is Rodrick’s son, and he is six years old and has essentially grown up going to demonstrations, going to these protests, is well aware of his uncle’s situation — in fact, he was only six weeks old when he first went to see his uncle on death row. Rodney Reed’s family has always been very public in their support of his case — not only him, but of other people on death row. So they had actually been to the Court many times. But on this day, it was the first time that they actually were there to attend this oral argument where they would watch lawyers on both sides, discuss and litigate these very technical questions.

JS: We’re not going to go into every nitty gritty piece of it because it’s a lot of word soup. But I think the real takeaway from the argument is that the state of Texas, who was represented in the court by its Solicitor General Judd E. Stone didn’t have any principled notion for why the earlier dates apply. Because it made no sense — like, no sense at all. It’s more just that they wanted to move the goalposts. They want all those early dates to be the right date for him to have filed so that they don’t have to deal with the testing. That’s it. There’s no lofty legal principle happening here whatsoever. It’s just simply that. 

And I think that, ordinarily, you wouldn’t go to federal court until your state court process had ended. So, for example, this whole idea that Rodney Reed should have gone to federal court in 2014, right after the lower court had denied him DNA testing, makes no sense. And basically, what would have happened if he’d done that, is the federal court would have been like: OK, what? You’re still in state court. We can’t do anything with this, right? 

But Texas thinks that’s OK. So basically, Judd Stone is saying that any of the dates that would deny Reed a chance to seek DNA testing in the federal courts are the right dates for the statute of limitations to start, the one date that’s not right is the date that Reed chose, and that date came after the CCA had denied rehearing in his case. So there was a bunch of discussion about why that wouldn’t be a good enough date.

A lot of the judges actually had some pretty good questions about Judd Stone’s idea for when this statute of limitations should kick in.

Justice Neil Gorsuch sort of kicked that off:

Justice Neil Gorsuch: Counsel, can I ask you to focus your attention on the difference between the date of the court of appeals decision versus the rehearing date? Why should we prefer your view to your colleague’s view on the rehearing date?

Solicitor General Judd Stone: A couple of reasons, Your Honor. The first of course being for purposes of this Court’s presumptive rule under Wallace, the actual constitutional violation that happened, the thing that caused the change of legal rights and decisions, was the judgment. 

Rehearing changed nothing about the rights and obligations under Texas law or the U.S. Constitution to Mr. Reed.

JS: And Justice Elena Kagan jumped in:

Justice Elena Kagan: That’s just because rehearing was denied. If rehearing had been granted and the decision had been revised, then it would have changed something. 

So why shouldn’t we understand that this claim of Mr. Reed’s, which is focusing on the authoritative construction, is focusing on the final authoritative construction, which we don’t know about until the end of the court of appeals’ process?

Judd Stone: Two points, Your Honor. 

First of all, our rule takes account of that. In the rare case — and to answer Justice Alioto’s question, it’s very rare that the Court of Criminal Appeals grants rehearing. In the rare case where there’s a rehearing and rehearing leads to a different decision, which then imposes an unconstitutional condition of some kind, that will be the accrual date. Very uncommon, but at least that will be the defined order which will have changed the rights and obligations of Mr. Reed and any other litigant like him. 

EK: But that suggests that there’s a sort of changing accrual date. First, we thought the accrual date was this, but now we think the accrual date is that. Why isn’t the simpler rule just to say we don’t know what the authoritative construction of the Court of Appeals is until the court of appeals’ process has concluded, the end?

JS: And he was kind of all over the place, right? Like, on one hand, he’s arguing that it should have been 2014. On another hand, he’s arguing that it should have been 2017. Again, it’s not really because he has some principled rule in mind, it’s more that he just wants to deny Reed testing and make it more difficult for people like Reed, to challenge the state of Texas for post-conviction DNA testing. And that’s it. 

But it’s kind of crazy that we end up as a Supreme Court with this case, because as Judd Stone is in there talking about all this, this is a Supreme Court, they’re not just ruling in one case. So these other deadlines that Judd Stone is proposing would create chaos across the system. Nobody would necessarily know when they’re supposed to file. I guess I’m supposed to jump in here while my state process is still going on, or I guess when it first got remanded I should do that, or I don’t know! Nobody’s gonna know. Right? I mean, it’s kind of crazy. What did you make of all of that?

LS: This has always been striking to me the times that I have gone to the Court, which has generally been in a case involving the death penalty, or life without parole, which is that by the time a case gets to the Supreme Court, generally speaking, the sort of facts of a given case, the basic facts, what you’re talking about, these life or death issues, are lost in this unbelievably overwhelming sea of legalese, and trying to follow the average oral argument is really, really challenging even for lawyers, even for journalists who are sort of trained in some of this vocabulary. 

And I sat there and tried to listen to these oral arguments and follow them, I found myself quickly confused and lost. And part of it is because there are precedents in other cases and different legal technicalities that are hard to grasp in real-time. And part of it is also because literally, these arguments make no sense, actually. [Laughs.]

JS: [Laughing.]

LS: In the case of Judd Stone, he was very good at delivering lines and making an argument sound way more legitimate than it should be because of the technical nature of these arguments.

JS: He comes across like he’s got this great moral authority, and has this really legitimate legal argument. But when you start to peel the layers away, it’s just a jumbled mess. 

I had a friend who was talking about this with, a lawyer, and he said: Stop looking for a principled position here. There isn’t one. They just want to deny the testing. And in which case, they just want to make a rule that denies testing.

And I really think, unfortunately, that’s the case. People who know even a little bit about how appeals generally work would know that this whole notion that Rodney Reed should have run to federal court in 2014 is kind of bonkers. It just doesn’t work that way. 

Justice Sonia Sotomayor sort of raised this whole thing that we’re talking about, where if he had filed the federal appeal in 2014, what would the federal court do with it? So she had a few questions and a sort of back and forth with Judd Stone about that.

Justice Sonia Sotomayor: So you’re saying — what should the federal court do? Should it stay and wait until the appellate court says yes or no?

Judd Stone: It need not, Your Honor. I might point out for practical purposes, for specifically Mr. Reed’s claim, even had he waited past rehearing, even had he waited past certiorari being denied, he still had about 10 months left on his two-year clock. So the idea — 

SS: You’re claiming he was dilatory for putting all of that aside, you still maintain that there’s some practical importance to not letting him —  not exhaust but go through a pending appellate process?

Judd Stone: He may, Your Honor, if he wishes. But if he’s already suffered a —

SS: And so — 

Judd Stone: — constitutional violation —

SS: — now the federal courts should wait or not wait?

Judd Stone: It need not, Your Honor. 

SS: But it can? 

Judd Stone: If parties request that it wait, that would be —

SS: That —

Judd Stone: — that would be on a —

SS: —  seems like an  —

Judd Stone: — case-by-case basis.

SS: — awful waste of time.

JS: And our newest justice, Ketanji Brown Jackson, also was echoing these concerns, and was kind of wondering, what was the point of the TK gemstones argument?

Justice Ketanji Brown Jackson: What’s the point? If he goes to federal court pursuant to your rule, while he’s in state court, the federal court will just stay the action until the state court action concludes. 

So what difference does it make? I thought the most compelling part of Mr. Reed’s merits claim or argument was that none of the purposes of the statute of limitations, the principles behind that doctrine, obtain in your rule, that it doesn’t matter whether or not, other than just to keep a prisoner from ultimately being able to bring a federal claim.

LS: It’s really tricky being at the Court trying to read into the reactions from the justices. Everyone is craning their necks to see how is this justice responding to this argument. And I definitely did that over the course of this argument. And there were times that it felt like the justices were appropriately skeptical of the state’s position here. of Texas’ position here, or asking the right questions — and not just the liberal justices. There were a couple of moments involving justice Amy Coney Barrett, where she seemed to be asking the right questions and sort of identifying the illogical position being adopted by Texas here. 

Justice Amy Coney Barrett: Mr. Stone, I have a question about this suggestion that he could exit after the trial court denied the evidence because, I mean, maybe I’m thinking about this incorrectly, but in a procedural due process claim, the claim is that the procedures given by the state were not adequate to protect — to ensure an unconstitutional deprivation of the liberty interest.

And in the case of Article 64, the full run of the procedure includes the trial court and then the direct appeal, in a capital case, the direct appeal to the CCA, and then we can have this dispute about whether the petition for rehearing is included or not. But I don’t understand why he could exit at the trial court stage because the way Article 64 is set up, to ensure that he’s not deprived of a constitutional right erroneously, is to give him the opportunity to appeal to the CCA and let the CCA correct any mistake that the trial court has made.

So am I understanding that correctly? I just don’t understand how the cause of action exists until the procedures have failed him.

JS: Judd Stone tried to come up with an answer for Justice Barrett, but didn’t really come up with a good one. [Laughs.] Instead, he just sort of hit on the idea that the whole point of trying to force Reed out of court was to punish him for essentially carrying on appeals, like they just see this as him sort of endlessly appealing and inevitable execution, essentially. And he was quite emphatic that there was no way that Rodney Reed would deserve a new trial.

Judd Stone: This is not a narrow case. 

This is about whether or not individuals seeking to press Skinner-style claims are allowed to essentially avail themselves of endless procedure in state courts, whether or not procedurally defaulted —

ACB: Well, just the procedure that Article 64 gives — and I — I guess I don’t see how this particular claim would have accrued, been ripe to exit the suit at trial court after the trial court ruled because the claim is that the procedure, as you said, was fundamentally unfair, but it’s not fundamentally unfair if the CCA could have corrected any mistake that the trial court had made, right? 

These are about opportunities for the procedure to run its course in a way that would correct any unfairness or any mistake made below.

Judd Stone: I think there’s a basic difference between insufficient procedures due process claims and unfair procedures due process claims. 

But even if I’m wrong and you’re right, Your Honor, that still means Article 64 provides an appeal up to the Court of Criminal Appeals and nothing else. 

It does not provide him in its own terms with petitions for rehearing motions to recall the mandate, these other additional sort of miscellaneous potential motions that could extend the accrual date for purposes of candidly forestalling imposition of a capital sentence.

LS: She was asking the right questions. Some other justices were also asking the right questions over the course of the oral argument. And that’s very important. But if we’ve come to learn anything doing this work, and in particular this year at the Supreme Court, it’s that there is no real meaning to be found in asking the right questions. We have seen other cases where the justices seem to get it, they seem to understand that there is no real logic or law on the side of the state in a case like this, and yet, that does not guarantee at all that they will come down on the right side of this. 

We saw this on full display in the case of Barry Jones, who is another man with a very compelling innocence claim whose case went all the way to the Supreme Court. And earlier this year, the Supreme Court, despite having asked all of the right questions at that oral argument, despite seeming to grasp that Arizona’s position made no sense and would require them to reverse their own precedent, they came down on the side of Arizona and sort of seemed to say: Oh, well! We don’t really care about innocence. 

In fact, in that case, the state of Arizona’s refrain had been: Innocence is not enough. Even innocence is not enough to guarantee relief in this case. 

So that’s very important to keep in mind as we await a decision in Rodney Reed’s case. The Supreme Court truly does not care about innocence in any way that matters. And we have to be very clear about that. And no amount of asking the right questions is going to change that.

JS: I think it’s clear that the state doesn’t really care. And I suppose the biggest question is: Will the Supreme Court care?

LS: There is something really important about the current political moment we’re in, in which Americans right now are really questioning the legitimacy of this unaccountable, right-wing Court because we see increasingly how it exercises its power in very dangerous and consequential ways. One thing that I’ve been thinking a lot about since I was at the Court watching these oral arguments is that the Supreme Court, it’s not just that these arguments are awash in legalese. This is an institution that is just as awash in prestige; you attend these arguments; and you sort of feel important, you feel the weight of history and the weight of all of this pomp and ritual that you experience while you’re there. And all the ways in which we show great deference to these justices in a way that makes it easy to lose sight of some of the life-or-death issues that are being decided. 

It’s so important — and it’s always been true in death penalty cases — that when you whittle it down to its core, these are justices who are ultimately deciding whether a person like Rodney Reed is going to live or die — and be executed, in this case, truly on a technicality. And I think that those decisions and the arbitrariness of those decisions and how this plays out, that has always been true. It’s just that we’re currently in a moment where I think increasingly Americans grasp that maybe the Supreme Court shouldn’t have the power necessarily to rule our lives in quite the way that we’re seeing now. 

So it’s an interesting moment for this case to come up. I also want to say for all of the maddening legalese and inaccessible arguments that were on display over the course of this hour, there was a moment at the end that was like a balm because it finally reached a point where the truth of what was being discussed could be on display for everyone. And that was where Parker Rider-Longmaid, who was arguing on Reed’s behalf, finally sort of said, towards the end:

Parker Rider-Longmaid: Mr. Reed has a stay of execution from the Texas courts on his ninth subsequent habeas petition before the courts where he raised evidence that Fennell admitted to killing Stites because he discovered she was sleeping with a Black man, that Fennell threatened to kill Stites if he caught her cheating, that Fennell made inculpatory statements at Stites’ funeral and that Fennell and Stites’ relationship was fraught. We have all the other evidence that Justice Sotomayor has pointed to and is in the briefing, and those are all serious things we think the Court should consider. So I think, when you look at the fact that no one’s going to be able to get a stay of execution without some showing, there’s really not a concern of delay in cases like these.

LS: He really just laid it out in a way that might not have legal teeth, but that sort of acknowledged the truth of what we’re actually talking about, where the real facts of this case and the evidence that’s come out — the things that should matter the most — were finally uttered aloud. And that was really important.

JS: That was Liliana Segura, a senior reporter with The Intercept. 

[End credits music.]

JS: And that’s it for this episode of Dissent, a production of The Intercept. 

This episode was produced by Laura Flynn and José Olivares. Roger Hodge is editor in chief of The Intercept. And Rick Kwan mixed our show. 

If you’d like to support our work, go to theintercept.com/join — your donation, no matter what the amount, makes a real difference.

If you want to give us feedback, email us at Podcasts@theintercept.com. Thanks so much.

Until next time, I’m Jordan Smith.

The post Dissent Episode Five: The Death Penalty, Deadlines, and DNA appeared first on The Intercept.

Back in 2017, the Supreme Court heard oral arguments in Masterpiece Cakeshop v. Colorado Civil Rights Commission, a case involving a cake shop owner who refused to create a wedding cake for a same-sex couple. In a 7-2 decision, the court found that the state had violated the cake maker’s religious objections. Now the court is considering another case out of Colorado that could expand the right to discriminate under the guise of free speech. In the fourth episode of Dissent, Jordan Smith and law professor Hila Keren discuss 303 Creative LLC v. Elenis, a challenge to the state’s Anti-Discrimination Act brought by Lorie Smith, a website designer seeking to refuse wedding design services to same-sex couples. Unlike Masterpiece Cakeshop, the 303 Creative case has no injured parties; it is a preemptive attempt to allow businesses to practice unfettered discrimination.

[Dissent theme music.]

Jordan Smith: I’m Jordan Smith, a senior reporter for The Intercept. Welcome to Dissent — an Intercepted miniseries about the Supreme Court.

There’s this organization called the Alliance Defending Freedom – or ADF for short. They’re a Christian-right advocacy group, working across the country to create legislation and case law to deny services to LGBTQ people and criminalize consensual sexual activity between adults. And they’ve landed a big case at the Supreme Court.

The ADF is representing Lorie Smith, a graphic designer from Colorado who claims the state is preventing her from developing wedding websites because of — wait for it! — an anti-discrimination law. 

To make their case, the ADF and Smith have developed a series of slick videos with epic music and drone shots over Colorado landmarks. 

Lorie Smith: As a Christian artist I was really excited to step into the wedding industry and use my artistic talents, except there’s a Colorado law that prevents me from continuing with my work and forces me to violate my beliefs and speak messages that I don’t agree with… I love working with everyone. For me, it’s never about the person that I’m working with. It’s always the message I’m being asked to promote… What I am asking the Supreme Court to weigh in on and to protect this fall is the right for all of us to be able to speak freely, whether your beliefs are the same as mine or different. 

JS: The case before the Supreme Court, 303 Creative LLC v. Elenis, is on its face, at least according to the ADF and Smith, about free speech. But my guest today argues that it’s not about that at all.

Hila Keren: There’s no legal limit to the idea of free speech but there are places to carry free speech. And part of what I think goes back to our Founders’ understanding of the reality of slavery and the 14th Amendment is that the marketplace is not the appropriate place for that because once we compromise access to the market, we are really cutting under this way of being in the world.

JS: That’s Hila Keren. She is the associate dean for research and a professor of law at Southwestern Law School in Los Angeles. She writes about the marketplace and the relationship between law and human emotions. 

And she argues that this case is really about weaponizing the marketplace under the guise of free speech and religious freedom and that there’s been no limitation placed on Smith’s speech. She’s actually been sharing her views all over the place. Hila joins me now to break down the case. 

Hila, welcome to Dissent. 

HK: Oh, thank you so much for inviting me.

JS: So, to start we need to do just a couple of things. First, would you lay out, briefly, the facts of this case, 303 Creative v. Elenis, including the Colorado law being challenged? 

HK: So in this case, a lady named Lorie Smith owns a business, which he runs with a company called 303 Creative, which gives the name of the case. What she’s interested in is an exemption from anti-discrimination laws on behalf of her free speech and religious liberty — although the religious liberty part of it was put on hold by the Supreme Court, because it only invited her to hear her free speech claims. 

And so the law in Colorado says that once you run a business and you’re open to the public, what the law calls public accommodation, then you have to serve everyone; you cannot discriminate against groups. In Colorado, like in many other states around the country, one reason you cannot discriminate against is sexual orientation. And it’s named specifically in the legislation, it was democratically added as a category that is protected in the state of Colorado, but in numerous other states. 

And despite this very explicit legislation, the business here insists on a right to discriminate. How would they have a right to discriminate? The argument is that the right to discriminate will or should arise — it never existed before — but should arise from the right to free speech. That business wants to start doing weddings. It is a business that designs websites and wants to embark on designing websites for wedding purposes. And in doing that, they really want to highlight a line that they will do this only for heterosexual couples, but not for same-sex couples. 

Now, the business, importantly, did not do it yet. And so they rushed to sue Colorado before Colorado did anything. And they claim that Colorado is going to be punitive, going to prosecute them, and therefore they are doing something called pre-enforcement litigation, taking a preemptive step to say: You can’t sue me if I ever start doing weddings!

So on behalf of free speech, theoretically wanting to say I will not serve same-sex couples in the context of creating web wedding websites for them. But that’s not all. On behalf of the same claim, I also want to be free to put a sign out there and I’m imagining the sign to be digital at this point because it designs website and has a website — but to declare, basically, that same-sex couples are not wanted for the wedding services that we are going to one day provide. 

This case went through the system in Colorado and lost, but purposely was taken to the Supreme Court. And that’s an interesting point, the Supreme Court picked it up because the Supreme Court does not have to discuss that. And that question some of us thought was already decided in the past. But the Supreme Court limited the debate to the question of free speech.

And the whole litigation, it’s a lot of effort; it is part of legal battles around the entire country. So it’s not just Colorado, it’s not just this business; and the point is to argue we should be exempt from anti-discrimination laws, and in their language, not to be compelled to speak. And I’m saying “in their language,” because some of us may struggle to see where is the compelled speech in this scenario.

JS: That was a nice opening summary because we’re going to get to every piece of that — at least I hope we will. 

But I guess we should back up just a bit here to talk about that previous case, Masterpiece Cakeshop v. Colorado Civil Rights Commission. Can you tell us a little bit about that case, and how it gets us to 303 Creative? And I guess, you’ve already hinted at this, but critically, what’s different about this case versus Masterpiece Cakeshop?

HK: This is another incorporated company business, commercial, this time it also [has] a storefront, that sells our cakes and other baked goods; similar to how the owner of the website designer refuses to serve same-sex — refused, I should say, to serve same-sex couples. 

There is a huge difference, though, between the cases. And this is that [there] baker[s] for real refused to serve real people. Their names are David and Charlie. And they were literally refused, very harmed, their photographs were all over the media. One of the mothers was with them. So there was a big, humane story which I find crucial to our understanding of what’s going on right now because at least people could have viewed both sides of this debate. And the party that is getting harmed for those discrimination was there to speak, to have a photograph, to have some sympathy and to have their story appear during the litigation. 

In Masterpiece, the Court really recognized the problem of stigmatizing the LGBTQ community and creating some undermining of the recognition of the right to marry for same-sex couples that was achieved in Obergefell in 2015, so several years prior, and the Court really said that gay persons and gay couples are social outcasts. And with that sympathy said that they were marked for such a long time as inferior in dignity.

So part of the analysis of the Court that existed in Masterpiece was: No you can’t do this because this is a certain compromise — actually, a big compromise of the dignity and self-worth of not only the couple that you hurt, Mr. Baker — David and Charlie — but the Court talked about community-based stigma, stigma that will be created if we’re going to allow businesses to simply rule out categories and say they’re not wanted there. 

So the Court decided not to decide in an interesting way. Because of that reasoning, the Court emphasized: We’re not going to allow businesses to discriminate and be released from requirements of Colorado to not discriminate and exempt them from any law. However, the Court really reprimanded Colorado’s Committee of Civil Rights for not treating the baker and his sincere beliefs with more respect. 

So respect was sort of the skeleton of this decision. And the Court said: In this case, we’re not going to protect the Committee, but not because we’re giving a wide exemption, but because you had to treat better the baker. 

In what sense did they not treat better the baker? In the sense that several people talking on the Committee opined that this, the sincere religious beliefs, are pretext to discrimination. It got the interpretation of the Supreme Court as possible disbelief of the religious claim, and that was isolated as inappropriate in this particular case. 

Why is it important to this litigation that we are now talking about? Because there were real facts. There was a record of a meeting; there was a citation from a person on the Committee that opined about the baker; and there were David and Charlie. And we can kind of try to do what we always do in law, balance between the human beings at play. And because we’re trying to balance between the human beings in play, there was this kind of fine line in Masterpiece where, well, you have to respect the community of LGBTQ people, and we’re not exempting you. But you have to also award respect to the baker, in that sense. 

So the Court was trying to balance rights and to see the whole picture on a rich factual pattern that is totally, and harmfully, missing in the situation that we are right now talking about in the case of 303 Creative.

JS: Yeah. I wonder if, also, critical to understanding what is going on here is to understanding what public accommodations law is. Can you explain broadly the contours of what we’re talking about when we’re talking about public accommodations law, and about protected classes, people that we’re trying to protect from discrimination? Broadly, or however you’d like to talk about it.

HK: We start from slavery historically, and from the 14th Amendment and the realization that it’s not enough to release people from their status as slaves, but rather crucial to their equality and joining society on different terms is their participation in the market. 

So the 14th Amendment is talking directly about the marketplace and demanding equal rights in the ability to make contracts. And I think that this is what’s at stake here. Because in order to purchase a good, anything I need, the cake from Masterpiece. And in order to actually get the service of website design from the provider in 303 Creative, we need a contract, right? I need the ability to make a contract. 

And when someone is saying: I am not going to make a contract with you because of who you are — not because you don’t have money, not because you entered my store with no t-shirt on, but because there’s something about who you are that I object [to] — that was forbidden from the beginning with roots going back to slavery. 

With time and during the ’60s, the principle was enlarged into a lot of subordinated groups, not only people who were slaves must be treated equally in the marketplace if we have any serious claim that this society is equal. Otherwise, if some people can make contracts, and some people cannot make contracts, if some people can buy houses but others cannot buy houses, then how are we going to just run this society?

And public accommodation law is really circling the demands of equality around businesses open to the public. So if you’re saying: I am open to serve everyone, then you must actually serve everyone. 

Now states created their own version for that. And states differ in what they call public accommodation, and many names, for example, specifically online businesses. So many states moved with time and added online businesses to that list. Because imagine — and after COVID, I cannot imagine that — 

JS: [Laughs.]

HK: — but imagine that Amazon would not serve a group in the population! That matters, even though they are not literally physically open to the public. 

So there is a variety between states regarding what counts as a public accommodation. But what matters to our case, and I want to point it out now, is that there was an agreement between the parties that was stipulated, and they could not argue about it — although the judges tried to argue — but that this business, the website design business, is public accommodations.

JS: That’s exactly what I was gonna say it was. My next question was: Yes, she stipulated this — 303 Creative, my website design business — is a public accommodation.

HK: Yeah. Now to go to the protected groups: That, with time, also was updated, and there is variety around the country. So some states only say you can discriminate based on race and sex and religion, for example. And some say you can’t discriminate based on gender identity, sexual orientation. We have the same principle in the different [states] regarding disability. We have a long — increasingly long — kind of a list. 

In a few states, the most recent addition is political affiliation.

JS: Yeah. So let’s come back to this whole thing about the stipulation because Lorie Smith, the owner of 303 Creative, has stipulated that her website business is a public accommodation. So, theoretically, shingles out there for all comers. Well, if she is saying: Yes, I am a public accommodation. What is she asking for? 

HK: She is asking for a right to discriminate, despite the law. 

She doesn’t call it “discriminate,” but a right to refuse to serve same-sex couples if they will come — and it’s an if, because that never happened — and ask her to design a website for them.

And during the hearing at the Supreme Court, it was interesting, because there were a lot of questions going at: But what if it will be exactly the same website? What if it is Harry and Steve, and Harry and Megan, and Harry and Steve are now getting married? And they come and they say: Well, we want exactly the same website you created for Harry and Megan, would you serve them? 

And the claim is: I cannot be compelled to give my expressive powers in designing websites to something that I disagree with. 

So literally, this is a request for exemptions from anti-discrimination laws, on behalf of free speech, for religious reasons, against same-sex couples right now.

JS: Why [would] one might stipulate to being a public accommodation? And maybe it has to do with opening this door wide.

HK: I want people to understand how this is not really a personal, individual dispute. Rather, what’s going on here is a really big legal campaign around the country, carried out with a very high budget, lots of legal talents, a lot of investment, and led by the largest conservative advocacy group called The Alliance Defending Freedom, or sometimes we call them the ADF. 

The Alliance Defending Freedom, in this particular kind of battle, they’re not defending anyone, they’re actually attacking. They have developed this legal strategy that is pretty sophisticated in which they went around the country — and deliberately around the country, in a variety of states, eight states so far, in Arizona, Kentucky, Minnesota, Wisconsin, Ohio, Colorado, Virginia, and New York, so they spread the battle — and picked people who are doing something somewhat expressive in the wedding industry, some of them photographers, some of them producers of videos, some of them florists, baker[s], we mentioned — a variety of those — and took states that are a combination of difficult states for them to win, like Colorado, and easier states for them to win, more conservative states, like Kentucky and Arizona, but deliberately. 

Why did they go also to the states that are difficult for them? Not because they like the challenge, but because they were hoping to get the issue to this Supreme Court. How do you get issues to the Supreme Court? You create — or you hope for, but here they proactively created — disagreement between circuits. So it all started in eight different states and got to four different circuits: the 6th, 8th, the 10th, and the 2nd. 

And this created a disagreement between the circuits. So for example, in the case of Colorado, the 10th Circuit said: No, you cannot discriminate. 

But the 8th Circuit in the case coming from Minnesota said: Yes, you can discriminate on behalf of free speech, at least in a temporary injunction that they have awarded. 

So that actually helped the Supreme Court to pick the case. But the strategy here is wider. And this goes back to why conceding that it’s a public accommodation because the whole point is to allow as many businesses as possible — and not as few businesses as possible — to actually make those statements. Because the purpose here is to use the marketplace as a platform to put signs out: Same-sex couples are not legitimate in some versions, and therefore I so object to the realness of their wedding and marriage that I object to serve them.

And so the broader it is, the more successful this political conservative battle is. So for that purpose, it’s really important to broaden it and to include public accommodations.

JS: That brings us to some of the arguments which, throughout them, there were a lot of hypotheticals, some rather cringy, and analogies, some of which were quite odd. And frankly, a lot of them, I think, missed the mark, by not implicating a protected class, for example, or even a public accommodation [laughs], like Kristen Waggoner, the lawyer representing 303 Creative bringing up the musical, Hamilton.

HK: [Laughs.]

JS: And how unless you vindicate her client’s rights here, that somehow Lin Manuel Miranda wouldn’t have been able to cast his show the way he did. 

[Musical clip from Hamilton: “The ten-dollar Founding Father without a father, got a lot farther by working a lot harder…”]

JS: OK … Miranda isn’t a public accommodation, and I don’t get how his casting would be an issue, even if he was. So there’s that. 

And then there was also Justice Samuel Alito’s incredibly cringy Back Santa and kids in KKK robes hypothetical, which I think that if people have heard anything about the oral arguments in this case, that might be the thing that they heard about. Let’s listen to a bit of that.

Justice Samuel Alito: […] Justice Jackson’s example of the — the Santa in the mall who doesn’t want his picture taken with Black children.

So, if there’s a — a Black Santa at the other end of the mall and he doesn’t want to have his picture taken with a child who’s dressed up in a Ku Klux Klan outfit, that — that Black Santa has to do that?

Eric R. Olson: No, because Ku Klux Klan outfits are not protected characteristics under public accommodation laws.

JS: Can you talk about why these hypotheticals and analogies just … fail, and how they obscure what’s really at stake here? 

HK: This question alone covers almost everything that is wrong with this case. The judges on both sides, liberals and conservatives, had to use hypotheticals because they didn’t have a case. If you have a real case, you can talk about the facts, but there were no facts. And during this hearing, the oral hearing arguments, there were repeated references to the lack of fact[s]. It was astonishing! 

SA: Well, you should understand what your statute means. So suppose a website designer says, I’m offering my services, but I’m in a lot of demand for my services. And I reserve the right to decide who I will provide a website for and who I will not. Is that a public accommodation, then?

EO: If that’s the only factor then yes, but it can make decisions about who to supply that aren’t based on protected characteristics and choose its clientele just fine. What it can’t do is say I reserve the right to refuse service which means in practice, I will not serve black people

Justice Ketanji Brown Jackson: And isn’t part of the problem here in terms of trying to answer Justice Alito’s various hypotheticals that were presented with a record of stipulated facts and that the opposing — your friend on the other side actually stipulated to the application of the statute?

So it’s really hard for us to know and figure out and determine in this context, how the statute would actually apply, because we don’t really have a real record on that — on that score.

EO: That’s correct.

HK: The fact that there were no facts invited those hypotheticals, made them necessary, because the justices on both sides were trying to figure out: What exactly are the limits of what you’re saying here? Can we do this? Can we do that? And they came up with a lot. 

So that’s one point. But the second point that I’m so happy you emphasized [is] the role of Justice Alito in that, because a lot of the Hamilton, Santa Clause, and all of those examples really come from a line that he and the lawyer wrote for the ADF, Ms. Waggoner, were trying to lead, which is a very problematic line that I want to pull out from the hypotheticals because the hypotheticals are so confusing, that actually you lose sight of what’s at stake.

And so what they were struggling with is the comparison of rejecting same-sex couples, to rejecting African-American people and interracial couples. So each time the word race in any variation came up in the oral arguments, there was a jump on the side of either the ADF, or the main justice was Justice Alito carrying that, to interrupt that, to not let it happen. 

So when Justice Sotomayor started to say: Well, on that premise, you’re free to hold your opinions, you can also discriminate against disabled people, because maybe you believe that they shouldn’t actually create a family, and interracial couples.

Justice Sonia Sotomayor: — tell me why it’s not protected speech, the identical message that — that Justice Barrett put forth, but by a disabled couple. And you say I don’t want disabled people to get married. I think propagating a disability is against my personal belief. It doesn’t have to be religious because we’re not dealing with the religious part of this. I don’t want to speak that message. I too believe that two disabled people getting married and telling their story of how they got in love, I’m not going to serve those people because I don’t believe —

Kirsten Waggoner: It’s not — 

SS: — that they should be married. What’s the difference between that and I don’t believe Black people and white people should get married? 

HK: Because it didn’t really disappear from the discussion, they brought a second line of argument. And the second line of argument was about Obergefell, the recognition of same-sex couples, and saying remember that in Obergefell when Justice Kennedy acknowledged and recognized same-sex couples, he said that some honorable people actually think that this is not really an appropriate kind of marriage. 

And they just repeated during the oral arguments — and when I say they, it’s Ms. Waggoner and Justice Alito — the premise of honorable people, honorable people, that are not like the racists. 

So there was a really big theme there: Is refusing same-sex couples similar to refusing people because of race? And they were leading a line of: No, that’s not the same. You cannot be an honorable racist, but you can be an honorable religious person who disagrees with same-sex marriage. 

However, one thing that is being left out is that there is no way to cabin that. Remember that we explained that the Supreme Court took the claim of free speech and not the claim of religious liberty. So because it’s free speech, free speech protects racists, and sexists, and bigots, and everyone. So if someone has, because of their free speech, the right to discriminate, then of course that it will be the decision that if it is in conflict with your free speech, you can avoid anti-discrimination laws, then the next move is to just say, well, part of me thinks that people, based on race, are inappropriate and therefore I will do the same. 

Justice Jackson also reminded people — and that was a great reminder on her part, great interjection — that a lot of people resisting interracial couples or intermingling of the races were basing it on religion. I mean, there is no limit to what segments of religion can create in terms of objections: Objections to women to women’s rights, what they can wear, to what they can do —

KBJ: Historically, opposition to interracial marriages and to integration, in many instances was on religious grounds. So I don’t know that we can say that just because we have a religious objection to same-sex marriage in this situation that wouldn’t necessarily implicate religious objections to other kinds of situations.

HK: This is really unlimited. So really, part of the harm here is this case is really unlimited in its scope. This oral arguments phase was really exposing a lot of that, a lot of inappropriate moments — not only in the hypotheticals, by the way. Throughout the entire argument, there were really hostile references to same-sex marriage. And it’s hard to reconcile this with the view that this is [an] honorable view. 

While I understand the religious argument here, you don’t have to call a marriage of someone else “false.” And the word false was used again and again during the litigation; the word “bad” marriage was mentioned. The Justices talked about things we loathe, including this marriage; things that are offensive to one’s beliefs. So there was so much of this hostility. 

At a certain point, Justice Gorsuch talked about how the baker for Masterpiece was sent to a re-education program:

EO: But, here, they are defining their service by excluding someone based on their —

Justice Neil Gorsuch: That’s their religious belief.

EO: Well, in Colorado —

NG: You can’t change their religious belief, right?

EO: No, but — but -— well, two —

NG: And you protect religious beliefs under the statute, right? That is one of the protected characteristics in theory.

EO: Yes, and in practice. If it wasn’t in practice, we have heard about it over — over the past several years and — and my friend has pointed to no example where this has been applied in a — 

NG: Mr. Phillips did go through a re-education training program pursuant to Colorado law, did he not, Mr. Olson?

EO: He — he went through a — a process that ensured he was familiar with —

NG: It was a re-education program, right?

EO: It was not a re-education program.

NG: What do you call it?

EO: It was a process to make sure he was familiar with Colorado law.

NG: Someone might be excused for calling that a re-education program.

HK: To me, the hypotheticals and those expressions of hostility are really part of what was so awful and went off track in this litigation. And it all happened because there were no facts. There was no other side. There was nothing to tell here. And therefore it went all over the place, to places that, to me, are inappropriate.

JS: Yeah, I was just going to ask you, basically, which of the hypotheticals stood out for you as actually capturing the core issue and the absolute certain fallout that would flow from a decision in 303 Creative’s favor?

HK: You know, the surprising part is that I think Justice Barrett was, at a certain point, trying to help Ms. Waggoner by introducing a story about [an] interfaith couple, but to me, it only said more about how unrestrained and limitless it is once you start doing all those things. Or there was a story that was part of how inappropriate it was about a couple that met in the workplace, and they were having an affair while being married to other people:

Justice Amy Coney Barrett: A heterosexual couple comes to her and in the engagement story part writes a story that goes like this: We met at work, we were both married to other people, but what began as late nights at the office quickly turned into love. After six months, we realized we could be happy only with each other, so we decided to begin our story today, got divorced, and are marrying each other. Does she publish it? 

KW: I don’t believe that she would. 

HK: I want to say actually, that from the variety of hypotheticals, people should get scared. Because it can target almost any one of us because, again, we have zero control on the free speech of people. And free speech is just unlimited. So if someone wants to say: Well, if you were married to someone when you met a new person, all of us with Chapter B in their lives should be worried — and who knows who is next!

So I think that once you start going downhill with human dignity, that’s where you land. And if you will allow me, I want to say that they repeatedly talked about how this view of being against same-sex weddings is honorable. And it’s honorable because Justice Kennedy promised them that. But Justice Kennedy never promised to allow people to discriminate. Justice Kennedy wrote Masterpiece and said: No, you cannot discriminate. I understand that you’re against it. And I believe you and your religious belief is sincere, Mr. Baker, but that doesn’t mean that you can discriminate. 

So no one promised honorable people that they’re allowed to discriminate. But what is really mind-boggling is how one-sided is this game of honor and dignity, because while they were emphasizing how honorable is the point of resisting same-sex couples, and also at one point, Ms. Waggoner said no one has to be compelled to express a message that violates their core convictions because it’s demeaning to them — meaning it’s humiliating that Colorado dares requiring equality. That was, by the way, a response to Hamilton, because she really got carried away with that. 

JS: [Laughs.] 

HK: But if you think about it, no one can demean the business owner. But the business owner can totally humiliate the customers, right? Only, you strategized the litigation in a way that no one can actually tell a story of how humiliated they felt. I think the loss in Masterpiece or the way Masterpiece said: No, you cannot discriminate — is because there was a voice there of really real people who got so offended and crushed by the refusal. What do you mean our wedding is false, right?

JS: And there was also a lot of talk about well, I guess trying to somehow cabin this in a way by talking about sort of a who versus a what. 

So, at one point, Justice Neil Gorsuch is like: Well, Smith would refuse this wedding website to heterosexual people too! So it’s really not the who who is asking, but the what they’re asking for.

And this struck me as odd [laughs] on a couple of levels. I mean, Smith does not want to provide wedding websites for same-sex weddings. And I mean, heterosexuals don’t generally have same-sex weddings. So the what — the same-sex wedding — is inextricably linked to the who in this scenario, right? Can you explain that a little bit or talk about that a little bit?

HK: Yeah. So this is one of those destructions, I think of, why are you doing this — and adjacent to that is the argument — but she serves the LGBTQ community; only when they get married, she disagrees with them!

And as Obergefell itself said, and they rely on it in their argument, but it also says, without the ability to get married and celebrate the marriage like anyone else, you really don’t have the full personhood. Right?

JS: Right. 

HK: So I don’t think you can separate the what and the who, in that particular situation. 

I have to say that if the same Lorie Smith went to the public square and wanted to carry signs against same-sex couples, I would be with her protecting her free speech. So I do think that people do have rights to opinions that are difficult for us to hear; I would not be on the same side of the campaign with her, but we both should have access to the public square. 

The problem here is the platform they chose to use. This insistence [that] not only we disagree with same-sex marriage, but we take the battle to the marketplace, and we’re trying to create via the marketplace, this segregated marketplace that will convey the larger resistance to same-sex couples. 

And so it’s not that Colorado chases businesses. It’s that those businesses chose to enter the wedding industry to make the point that actually is a political point: We never agreed with the right to get married, and now that it exists — after Obergefell — we’re going to resist it in many ways. And this is our most creative one in which we’re going to use cakes and flowers to make a political point.

JS: You know, I was really sort of worried after the oral argument? I think part of it does have to do with how bonkers a lot of the hypotheticals were. And, of course, it naturally all relates back to the problem of not having a story on the ground, just sort of this hypothetical that Lorie Smith wants to build these websites, she just doesn’t want to do them for you, as you said. 

But by the end of the argument, I was just sort of like: Oh, no, where is this going? And I fear that it’s kind of going towards what you’re suggesting, that the wheels are about to come off the bus here. 

I mean, and then it also strikes me that, of course, yeah, they didn’t have to take this case, right? They kind of grabbed it. 

There’s probably nothing uplifting to say about all this. But I’m just curious what your takeaway was. I mean, the harms are very clear. And I’m very worried. And I don’t know that there’s a reason for me not to be worried, if that makes sense. I’m kind of curious what your final sort of takeaway was.

HK: I share your sentiment. That’s how I ended after listening carefully to the oral arguments, thinking it’s going the wrong way. And the reason it’s going in the wrong way is structural. I think the Supreme Court has six conservative justices. They were never happy about the recognition of same-sex weddings and marriage, and so now they’re undermining it. 

I mean, in the debate about abortion, if you recall, when we were all taken a very, very fundamental right [sic] that we thought we had for 50 years, there was a question: What’s next? Whose rights are next? 

And some people were saying: Oh, no, they’re not going to touch same-sex marriage. But this is a serious way of touching and injuring same-sex marriage, right? Because you can recognize the marriage but undermine everything else around that. And then you really mark second-class citizens here. And then when the list is open of who is a second-class citizen, then we can add to the list more and more people.

So this is dreadful, and it comes from the structure of the Supreme Court. I think that’s another significant difference between the times of Masterpiece Cakeshop and 303 Creative. 

What’s changed is also not only the litigation, but also who’s on the Supreme Court, and you could hear it. I mean, they joined it from the perspective of religious liberty and from the perspective of disliking strongly the state, like you could hear it in Justice’s Gorsuch reactions — like what about Colorado compelling — and that’s like a mixture of several conservative agendas. Like now the state is not allowed to enforce anti-discrimination laws. 

So we are going to before the ’60s, this is undoing the entire system of civil rights. And with no civil rights in the market, no civil rights in the workplace, no civil rights in housing, no civil rights in the public accommodations, where are we headed is a really severe question. 

The only sliver of possible hope I can try to work on, and this is what I’m working on, is to say: You know what? This is not only between states and their citizens. This is also between us as human beings. The problem is interpersonal — although they are hiding it, they were trying to hide it. And we have a legal system that covers the relationship between person to person.

And so to me, my project is to take a look at those laws — for example, contract law. If I’m trying to make a contract with you, and I have the money, and I respect your business and your rules, and I merely entered your store and ordered something you sell to everyone else and I can pay cash or credit, whatever you want, does contract law allow you to say: No, I will not contract with you?

Another big one is tort law. In our tort law, we are actually banning people from intentionally inflicting emotional pain on others. So if someone is to reject in a very humiliating way a client — so David and Charlie with the mom get into the store, only to be turned around for who they are, that’s a lot of pain to go back home with. And so isn’t it intentional infliction of emotional distress? 

So, I don’t know. This is kind of against the grain of our habit to say political questions are going to be determined under constitutional law, and our tort law, property law, and contract law are going to deal with money and the people who have money. But I do think that when interpersonal problems are happening, those laws should offer remedy, even if we lose the battle on anti-discrimination laws.

JS: You know what? I will take that sliver of hope in the law and end there. 

HK: [Laughs.]

JS: Hila, thank you so much for joining us.

HK: Oh, thank you. It was a fascinating conversation.

JS: That was Hila Keren, associate dean for research and a professor of law at Southwestern Law School in Los Angeles. 

This episode was produced by Laura Flynn and José Olivares. Roger Hodge is editor in chief of The Intercept. And Rick Kwan mixed our show. 

If you’d like to support our work, go to theintercept.com/join — your donation, no matter what the amount, makes a real difference.

If you want to give us feedback, email us at Podcasts@theintercept.com. Thanks so much.

Until next time, I’m Jordan Smith. 

The post Dissent Episode Four: The Right to Discriminate appeared first on The Intercept.

The Supreme Court is hearing a case that could dismantle the Indian Child Welfare Act, also known as ICWA. The law was passed in 1978 to combat a history of forced family separation in the United States and prevent the removal of Native children from their communities. But now, in Haaland v. Brackeen, ICWA could be completely overturned. In the third episode of Dissent, host Jordan Smith is joined by Rebecca Nagle, a journalist, citizen of the Cherokee Nation, and host of the podcast “This Land.” Smith and Nagle break down the case and its broad implications for laws based on tribes’ political relationship with the U.S. government.

[Dissent theme music.]

Jordan Smith: I’m Jordan Smith, a senior reporter for The Intercept. Welcome to Dissent, an Intercepted miniseries about the Supreme Court.

[Low, contemplative music.]

JS: During the middle of the last century, the U.S. government introduced the Indian Adoption Project. Through this project, Native children were taken from their families and communities and raised by white, non-Native families. 

A 1966 press release from the Bureau of Indian Affairs reads: 

“One little, two little, three little Indians — and 206 more — are brightening the homes and lives of 172 American families, mostly non-Indians, who have taken the Indian waifs as their own.

A total of 209 Indian children have been adopted during the past seven years through the Indian Adoption Project …”

Mind you, even before this, Native children were removed from their homes and put into boarding schools. Facing harsh conditions and abuse, Native children were forbidden from speaking their language and practicing their religion. Families who didn’t comply could be imprisoned. Whether it’s 1871, or 1958, the U.S. government has a long history of undermining treaties it has signed with tribal nations and passing laws that eliminate tribal autonomy. They viewed tribes as quote-unquote “uncivilized,” and that they had to assimilate into quote-unquote “American society.” 

By 1978, around one-third of all Native children had been removed from their families and communities. So that year, Congress passed the Indian Child Welfare Act, in an effort to stop Native children from being taken from their communities. The Indian Child Welfare Act, also known as ICWA, established protections for Native children and their communities. 

But now, the Supreme Court case Haaland v. Brackeen is putting it all on the line.

Chad Brackeen: So four years ago, we felt a very profound calling from God leading us to become foster parents and serve children that needed a safe home.

JS: That’s Chad Brackeen. The Brackeens are a white family from Texas, who are asking the Supreme Court to overturn ICWA. They had fostered a Native child and wanted to adopt him. But because of ICWA, and that long history of separating families, Native family members had priority for custody of the child.

CB: But we pursued adoption anyway because we felt like that was the right thing to do. Unfortunately, even with the support of his biological family, many other people that were involved with the case, the judge said, because of ICWA, he had to deny our adoption.

JS: They fought the case. And actually — this is wild — before taking the case to the Supreme Court, they won their adoption case in Texas. But they’re still charging forward to overturn ICWA.

CB: Not all cases end the ways ours did. In fact, we hear stories of other people in the same situations across the country. Like there’s two other families in the state that are going through the same pains and struggles that we are, and fear for their children. We did that so that we can advocate that their best interests, the interests of the child, is what is considered in these adoptive placements, not their race.

JS: Oof. 

The implications of this case are huge. Overturning ICWA could open the door to further threats to tribal autonomy. There is a lot to unpack here, so I sat down with Rebecca Nagle. She’s a journalist, citizen of the Cherokee Nation, and host of This Land podcast. 

The second season of her podcast goes into great detail about how this seemingly simple adoption case is actually an attempt to dismantle tribal sovereignty. 

Rebecca, welcome to Dissent.

Rebecca Nagle: Thank you so much for having me.

JS: So you’ve done such extensive and amazing reporting on the case before the Supreme Court that we’re going to talk about today, which is Haaland v. Brackeen. So to start, would you lay out just the basics of the case for us? 

RN: Yeah, absolutely.

So a group of foster parents in the state of Texas are suing the federal government to strike down a law called the Indian Child Welfare Act that was created to prevent family separation in Native communities. The plaintiffs contend that the law unconstitutionally discriminated against them, which is an extraordinary claim, given what actually happened in the custody cases, which I’m sure we’ll get into. And Texas is basically making a states’ rights argument. Native advocates, tribes that intervened in the case, and a lot of court watchers warned that the case is about far more than this law or Native children and that it’s actually about a far broader attack on tribal sovereignty and Indigenous nations within the U.S. 

JS: Before we get too into the weeds with what happened at Court, I want to talk a little bit more about the Indian Child Welfare Act, or ICWA. Can you tell us a little bit more about what ICWA is and a lot about what prompted Congress to pass it in 1978?

RN: Yeah, absolutely. And so when Congress passed ICWA, in 1978, it was after there had been this big national survey that found that 25 to 35% of all Native children had been taken out of their homes and away from their tribes. 

And a couple of things were going on: There was a federal program, where the Bureau of Indian Affairs literally gave the Child Welfare League of America money to take Native kids and put them in white homes with the very racist thinking that they were better off there. And the other thing that was happening at the time, in far greater numbers, was that Native children were being removed by social workers and child welfare agencies — and oftentimes not for reasons like abuse, but for reasons like poverty, or a child was being raised by their grandparents instead of by their biological parent. 

And so what ICWA does, is actually a lot of different things. At different steps in the process of a child going through either private adoption, or, more commonly, through foster care, [it] puts guardrails on the process to make it harder to separate Native children from their families and tribes. And so some examples of what that looks like: States are required to have active efforts to reunify children with their parents, not just reasonable efforts, which is the standard for everybody else; tribes can intervene in cases, or if the kid lives on tribal land, the case just goes to tribal court; and if children can’t be reunified with their parents, ICWA sets out placement preferences of where they should go next, prioritizing family members and other members of that child’s tribe. 

So yeah, it’s a really complex law that does a lot of different things in these lawsuits — one or two aspects of the law can kind of become a focal point — but the main thing it does is just make it harder, not impossible, but harder to separate Native children from their families.

JS: Yeah, I was actually going to ask you to kind of lay out the list of placement preferences, because the third preference comes up a lot in the argument. 

RN: Right. Yes. [Laughs.]

JS: And we’ll get into that specifically in a bit. But I think for people to understand that, we’re going to need a bit more background about what those placement preferences are, including that one.

RN: Yeah, absolutely. So if a child cannot be what in social work, or child welfare proceedings, is called reunified with their biological parents. The placement preferences set out where they should go to next and so the first placement preference is a member of their extended family. And, actually, because a lot of Native folks are mixed, that extended family member could be Native or non-Native — as long as they’re related to the child, they’re prioritized equally. The second placement preference is another citizen of that child’s federally recognized tribe. And then the third placement preference is another citizen of a federally recognized tribe. And it doesn’t have to be that child’s tribe. 

And I’m sure we’ll get into it, but that was the placement preference that upset some of the Supreme Court justices. What’s interesting is that it’s a facial challenge to a law, and so usually you’re looking for being able to at least point to a situation where that has happened. [Laughs.] And the plaintiffs in Texas could not. And so it was talked about a lot in arguments, although it didn’t happen in any of the underlying custody cases, and they couldn’t bring forward an example where it had happened in any custody case.

JS: Right, right. We will talk about that a little bit more here in a minute. 

So there are several threads being pulled seemingly kind of all at once in the oral argument, but the common theme or a key to understanding what’s up, I think, is kind of understanding the relationship between the federal government and the various federally recognized tribes and Congress’s plenary power as it relates to those tribes. 

Can you explain that piece of it?

RN: Yeah, absolutely.

So tribes have a unique political relationship with the U.S. federal government that has been recognized literally since the founding of the Republic. [Laughs.] And so, there are a lot of laws within the United States that treat tribes and tribal citizens differently than other people in the United States. And it’s called a lot of different things: People call it a treaty relationship; people also call it a trust relationship. But the difference in how Indigenous folks in our nations are treated, doesn’t stem from a racial category, it stems from a political category under the law and that category is established by lots of different parts of the Constitution, but I think mostly the Treaty Clause. 

And so the U.S. has signed treaties with Indigenous nations through the same constitutional process that it has signed treaties with other foreign powers. And so a lot of times in those treaties in exchange for land, the U.S. federal government offered or guaranteed certain kinds of protections. And so from that, Congress has a unique authority in the arena of federal Indian law. And that authority has been established actually by the Supreme Court, but also recognized now for well over a century. 

And so it’s kind of late in the U.S. history to come back and say: Oh, we can’t treat Native people differently. That’s racial discrimination. And also, Congress doesn’t have power to legislate in this area of the law, when we’ve been allowing Congress to do that for a very long time. 

And so I think that it can be kind of confusing to folks because it is a really different area of law. But you know, one way I put it is, just like certain laws apply to me, because I’m a citizen of the United States or because I’m a resident of Oklahoma, certain laws apply to me because I’m a citizen of Cherokee Nation. 

And that is absolutely how ICWA works. The law, first of all, only applies to children who are either enrolled in a federally recognized tribe or eligible for enrollment. And as I already discussed, that’s how the placement preferences flow, too; so somebody could have Native ancestry, and the law still wouldn’t apply to them. So it’s not a one-for-one equivalent to folks who have Native ancestry. 

JS: The lawyer for the Brackeens, Matthew McGill, seemed to be suggesting that ICWA was beyond Congress’ power. And instead, it was just this impermissible scheme to give preference to tribes, tribal members, based on race — and, in so doing, he suggested the real victims here are, wait for it, the Brackeens, and that what ICWA really does is discriminate against them because they’re white. 

Can you talk a little bit about McGill’s argument? And also, I’d love it if you could tell us a little bit more about who McGill is, and his background in these issues.

RN: Yeah, so Matthew McGill is a corporate lawyer who does a lot of appellate stuff. So it’s not his first time in front of the Supreme Court. And he works at a law firm called Gibson Dunn. Gibson Dunn is a really big corporate law firm that normally represents people like Amazon, and Chevron, and Walmart. They were also the law firm for the company behind the Dakota Access Pipeline. And the other thing that they do is that they have a lot of clients that are in the gaming industry, so casinos, and a lot of people in the gaming industry view tribal gaming as sort of monopolizing a corner of the market. And Matthew McGill and a senior partner at his law firm named Ted Olson actually filed a federal complaint about a year ago making that argument and then using the exact same legal arguments that they’re making here in this ICWA case, but instead about casinos. 

And so you can kind of already see — literally — how if they got a win in Brackeen, it could set precedent that would benefit their gaming clients, which is just really sinister when you think about how this case also just involves the lives of Native children. So that’s Mr. McGill.

And then the arguments that they’re making — they’re basically making two really, really big arguments and then a third smaller argument. So the two big arguments that they’re making are that ICWA violates the equal protection clause of the 14th Amendment, which is basically laws in the United States can’t treat people differently based on race. 

And they’re saying, this whole idea of tribes and tribal citizenship — and when it comes to ICWA, that’s not a political classification, it’s racial. And then the second argument that they’re making is that child welfare in these types of cases are really up to states; states are the ones that pass child welfare laws, and they get to decide how these cases are adjudicated. And Congress can’t step in and tell states here what to do. Although there are actually like a ton of federal laws [laughs] that also came up during oral arguments. Like this isn’t the only federal law that governs family law. 

But anyways, and then they’re making a smaller argument that’s also saying that because state agents — a social worker who works for Texas has to actually like carry out what ICWA requires, it’s called commandeering, so it’s the federal government commandeering estate agent — and that that’s also unconstitutional.

JS: Yeah. I thought that it was really interesting when, I think it was Justice Sonia Sotomayor, who was bringing up like: Well, what about the parental kidnapping and The Hague Conventions?

Justice Sonia Sotomayor: Counsel, can I turn to something you said, which was it displaces the best interest of the child standard? In most state custody proceedings, the best interest of the child is what guides those decisions. Yet we have the Hague Convention on the abduction of children that basically says to the Court: You can’t make that determination. You have to send the child back — and it gives a section of exceptions, etc., and it even sets standards of proof, etc. 

Why is this case any different than the Hague Convention?

JS: Maybe you could talk about those. Because it relates back to the relationship of the federal government and that trust relationship with tribes, right? They’re trying to explain: The way this works is the same way, right?

RN: Yeah. 

JS: And McGill just seemed to be kind of not having it — or maybe not understanding it! I don’t know which it was. [Laughs.]

RN: Yeah. No, I think there were funny moments, with both McGill and then the lawyer for Texas, also, where they just kind of got tripped up. Because what they were trying to do is they are trying to make the argument that the implications of this lawsuit aren’t broad. And Sotomayor, Gorsuch, and other justices weren’t buying that. Because it’s sort of like: How can this be true about ICWA and not be true, like you said, about the kidnapping law or the Hague Convention? Or there’s a law that protects service members who might be in child welfare proceedings that’s a federal law. And so would all of those laws also be struck down if ICWA was struck down? 

And then it was kind of the same thing they were saying around Congress not having this authority when it comes to tribes. So they were trying to argue that children aren’t within tribal self-interest, which is crazy! [Laughs.] And then they’re also trying to say: Oh, well, because it’s off of tribal land and it doesn’t just apply to kids who are on the reservation — so they were trying to split hairs, and sort of make a narrow argument. 

But when you kind of zoom out and look at the case, the arguments that they’re making are quite broad. And that’s what’s scary about the case is that it could have really big implications on federal Indian law. So if ICWA discriminates based on race, well, what about casinos? Like, how is it fair? Or how is it racial discrimination for this non-Native foster parent to not be able to adopt a Native kid, but it’s not for a tribal tribe to be able to operate a casino where a non-Native developer cannot? What about health care? Why can I go to a healthcare clinic that only serves tribal citizens? And if you went there and tried to get health care, they would turn you away? If we are just a racial group, what about the environmental regulations that we have, the elections, the government, the land rights, the water rights, what racial group has its own court system, its own police force? 

And so the fear is that the case could really be a domino effect. And so at the Supreme Court, they were trying to downplay that, and sort of draw the lines in the sand. There was this moment between Kagan and the lawyer for Texas, where Kagan was just like — she’s obviously not saying this — but almost kind of just like: What the hell are you talking about? [Laughs.]

JS: Oh, we’re gonna get to that? 

RN: [Laughs.]

JS: [Laughs.] Yeah, it was kind of great. [Laughs.] 

Yeah, no, absolutely right. Because all over the argument, it seemed to me there was this willful misunderstanding of the difference between political classification and racial classification. And one of the ways in which it repeatedly gets brought up is in reference to that third preference. 

RN: Yeah. 

JS: And it was like several of the justices — and my mind immediately jumps to Justice Brett Kavanaugh here — 

RN: Yes. 

JS: — seem to be suggesting that like: Aha, this third preference is what signals that this is actually all about race! 

So here’s Kavanaugh:

Justice Brett Kavanaugh: I want to ask about the equal protection issue quickly. 

The equal protection issue is difficult, I think, because we have to find a line between two fundamental and critical constitutional values. So on the one hand, the great respect for tribal self-government, for the success of Indian tribes, with Indian peoples, with recognition of the history of oppression and discrimination against tribes and peoples. So that’s on the one hand. 

On the other hand, the fundamental principle, we don’t treat people differently on account of their race, or ethnicity, or ancestry — equal justice under the law. I don’t think we would ever allow, as the Court suggested in Palmer in 1984, Congress to say that white parents should get a preference for white children in adoption, or that Latino parents should get a preference for Latino children in adoption proceedings. I don’t think that would be permitted under that principle of equal justice that we recognized in Palmer.

JS: So yeah, that one. And I want you to say whatever you would like to say about that. But I was kind of hoping that you could explain within this here, why the third placement preference is not about race, and also kind of go back into something you talked about a little bit at the beginning, which is equally important, which is how it’s not even an issue in this case. Because I felt like they kept invoking it as a way to sort of theoretically, at least, sort of bolster this idea that this is all about race, and thus an equal production problem. But it doesn’t actually exist. Because a, it doesn’t exist in this case, but also it’s because that’s not what the third preference is signaling at all. So yeah, take any piece of all of that you want. [Laughs.]

RN: I mean, I think Kavanaugh has this habit of sort of making statements that are, I think, a dog whistle. That’s actually the more tempered example. He has another moment where he’s just like: Well, we couldn’t pass a law where just white people could only adopt white children, could we? And he says things that are a little bit like that, but more inflammatory. 

And so I think it just betrays that that is a statement that isn’t about the law because the law doesn’t just apply to people who are Native or who have Native ancestry, like I already explained. To me, that statement is just about the raw politics of the case, and sort of buying into the framing that the individual plaintiffs have used.

And then when it comes to the third placement preference, it wasn’t invoked in any of the underlying custody cases. And actually, one thing that’s really important to note is that in all of the underlying custody cases, there was a Native blood relative that wanted to raise the Native child; every Native blood relative got pushback, whether that was from a social worker, a family court judge, or the individual plaintiffs themselves, and only one Native grandmother was able to win custody, and she had to fight to be able to adopt her grandchild for six years.

That was the thing that made me very angry about listening to the oral arguments was having talked to those Native families and seen and heard stories of the real — very real — barriers that Native families face when they’re just trying to keep their children and for the justices to spend so much time on this hypothetical that isn’t even happening. 

And so the reason that third placement preference is there is because Native communities are more complicated than just a federally recognized tribe. So for example, as Cherokee people, there are three federally recognized Cherokee tribes, two here in Oklahoma that have the same reservation, the same land. And so maybe a child could be enrolled in the Cherokee Nation, but then one of their extended family members is United ??Keetoowah. And it would be completely appropriate for a UKB person to adopt that child. 

There are also Native people who might live on a reservation that is not their own. A lot of times people also are members of more than one tribe. And some tribes have rules where you can only enroll in one tribe, so they might be enrolled in one tribe and are eligible for membership in two. That’s actually [true for] one of the children in this case. He’s eligible for enrollment in, actually, three federally recognized tribes, but he’s only enrolled in one of them. And so yeah — there’s a lot of reasons why somebody would be an appropriate caregiver for a child but not a citizen of their tribe, but still connected to that child’s community. 

And so Gershengorn, who was the lawyer for the intervening tribes, did a really good job of explaining it, where the hypothetical they’re talking about, I think he called it like the Arizona to Maine [hypo], where it would just be like a completely unrelated person, completely unrelated tribe. And the plaintiffs in Texas haven’t put forward such an example. And so we’re talking about a hypothetical that may have never happened, at least that nobody can point to. 

And so yeah, again, I just think, for me, the takeaway from that is that the justices are sort of more concerned in these hypothetical questions than what is actually happening on the ground, which I think is very concerning. And I think is also — and I’ll stop here — but I think is a reason why this is a question for Congress because Congress is the body of our government that can have hearings, that can do investigations, that can issue reports, that can be like: Well, what is actually happening? Because I don’t think that we should determine what policy is best for the well-being of Native children by nine pretty ignorant people about how the law works, and what’s happening on the ground, based on hypotheticals. It should be based on what’s actually happening in these custody cases. And that’s an issue for Congress, not the Supreme Court.

JS: That’s absolutely right. That’s policymaking, right? Which actually — we’ll come to the Kagan moment here. [Laughs.] Because this is where Texas sort of enters the picture, at least in our conversation. 

They’ve firmly stuck their foot in the middle of this case. And I will say, for more on that, you have to listen to Season Two of Rebecca’s podcast, but representing the state at the Court is Solicitor General Judd Stone, who had a couple of lines of attack: what we were talking about, the anti-commandeering, so that basically provisions of ICWA conscript Texas into enforcing a scheme that, by the way, too, was beyond Congress’ plenary power and is basically illegal. But in trying to make his argument he kind of created out of whole cloth parameters for Congress. And to this Justice Elena Kagan was like: Wait, what?

Justice Eleanor Kagan: Yeah, I guess the only point I was making, I’m sure that we can find places where the Court has said that Congress has power over each of these areas. But I don’t think you’ll be able to find a place where the Court has said, what the plenary power means is these three things and these three things alone, and the plenary power doesn’t extend further. 

Because after all, the Court has said — I mean, I don’t really believe in reading our opinions like statutes, but when the Court uses the phrase “plenary power” tens and tens of times over decades and decades, I mean, plenary means unqualified, it 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 constructing categories, and saying everything else is left out when we’ve said over and over that everything, except really rare things, are in.

JS: So Stone’s position also clearly did not impress Justice Neil Gorsuch, who we should note, right, is the only one on the Court with substantial experience in federal Indian law. 

Judd Stone: — Indian Affairs power —

Justice Neil Gorsuch: I’m sorry to interrupt, but this new rule 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. 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 bitten out of title 25. We’d be busy for the next many years striking things down

JS: And then several of the justices seem to have a hard time wrapping their heads around Indian law until the lawyer you mentioned that’s representing the tribes, Ian Gershengorn, got up and basically just kind of slayed Stone and McGill’s arguments one by one. Let’s listen to that.

Ian Gershengorn: Now Interior has explained how good cause works. It involves, you can take into account the views of the parents; the views of the child, if the child is old enough to express them; you can take into account sibling attachment; you can take into account bonding with foster parents, as long as it was not done illegally through ICWA. The thing you cannot take into account is socioeconomic status. So what the Casey brief and others say, and the reason why medical professionals are here, states are here, family rights advocates are here is because ICWA is the gold standard. It adopts those evidence-based presumptions and allows for flexibility to protect the best interests of the child. 

JS: And then again: 

IG: First, this is at the core of the Plenary Power Doctrine. From the beginning, the Plenary Power Doctrine was used to protect Indians from non-Indians. There is no doubt that if states had moved in and done a wholesale physical removal of Indian children that would have been within the duty of protection. The fact that this is being done through state courts, through state family law, doesn’t deprive Congress of power.

JS: Do you think that Gershengorn finally got through to the judges?

RN: Yeah, so Gershengorn, this isn’t his first time representing tribes in front of the Supreme Court. And he is one of the lawyers that’s been tapped by a broader project called the Tribal Supreme Court Project that was co-founded by the National Congress of American Indians, and the Native American Rights Fund after about a 30-year period where tribes had lost the majority of cases. And so tribes were really, in the early 2000s, really not doing well in front of the Supreme Court. And so they what they did is they went out and they looked at lawyers who have a practice, are already kind of established at the Supreme Court; Gershengorn was the Solicitor General before and then have brought them in and sort of made them better, brought them up in their arena of federal Indian law and made them experts there. And so Gershengorn didn’t just fall out of the sky and be like an effective advocate. It was also decades of work from lots of different folks to create that project. 

And so yeah, I mean, I think in terms of where the justices are at, I mean, I think from the beginning, there were four justices who were very clearly skeptical of Mr. McGill and Mr. Stone’s arguments — so, Kagan, Sotomayor, Jackson, and also Gorsuch. So the three liberal justices and Gorsuch, and then you had four justices that, in my mind, their questioning wasn’t really tied to the details of the case, or really the legal arguments presented, but it was more about the politics of the case and how it looked. This is a court that’s also hearing cases around affirmative action, and so this kind of dog whistle of like, oh, well, this is treating people differently based on race, I think has a lot of traction with this court, especially with Chief Justice Roberts. 

And I think that if there is a swing vote in the case, it’s Barrett. So the questions that she asked were very specific, and they were kind of in the weeds about how the law works. And it was about that kind of third argument, anti-commandeering, which could still strike down ICWA, but would have less of a disastrous effect in the arena of federal Indian law. 

Yeah. So I think what’s is that a lot of people say that the justices have kind of made up their mind by the time we get to oral arguments [laughs], and some of the justices already seemed set in their positions. But yeah, I think Barrett seemed very curious about how the law actually works on the ground and was also asking questions that were more narrow and would have less of a sweeping implication on the Rights of Indigenous nations in the U.S.

JS: Regarding Barrett, just to be clear, because I realized she was asking some very specific questions and I felt kind of out of my element trying to figure it out. But — I don’t know: Was she trying to get at severability? That you could not burn it all down. Do you know what I’m saying?

RN: Yeah. She asked, I think, to each lawyer, so four times she asked the same question, which was basically: Who carries out active efforts? 

So I mentioned it before, but ICWA requires active efforts to reunify a Native parent with their child if the child has been taken away by child welfare workers. And so she basically was like: Well, who is required to carry out these active efforts, which kind of goes to that anti-commandeering? And there is a world where there is a Barrett opinion that maybe is more narrow, where only part of ICWA is struck down, and that would be like the active efforts section, or maybe ICWA is struck down, but it is struck down in a way that doesn’t impugn the rest of federal Indian law. 

I think the big fear with this case is that it’s going to be like a bomb going off in Title 25, and have really big implications for other areas of the law. So yeah, so Barrett was asking a very specific question. Her question actually didn’t get answered [laughs] by any of the advocates. So it’ll be interesting to see what happens.

JS: To end, I want to zoom back out a bit. In the argument from various lawyers, we heard a lot about how terrible ICWA is, and how victimized the Brackeens have been by it. But you’ve done so much reporting on this. And I want to know from you how ICWA actually works, like how it’s applied in practice. What can you tell us about that?

RN: Yeah, absolutely. So I mean, one is I don’t think we have to go further than the custody cases that are before the Court to see why ICWA is important and why it’s necessary. So like I said, before, every child in the underlying custody cases had a Native relative who wanted to adopt them. And every Native relative got pushback, and a lot of times that pushback was about things like — they had a non-violent criminal record, or they were poor. It’s the same type of crap that was happening in the 70s.

These individual foster parents also went to pretty extreme lengths to try and gain custody and fight off blood relatives who wanted to adopt the children. So I mean, the Cliffords, who are the couple from Minnesota, Danielle Clifford wrote a whole affidavit about how Child P’s grandmother shouldn’t even have supervised visits with her grandchild because she had bad boundaries. And the concrete example that she offered the Court about this grandmother’s bad boundaries was a list of every time that grandmother had given her grandchild a gift. So just some really kind of awful and heartbreaking things actually happened in these custody cases. And when you dig into it, the awful, heartbreaking thing isn’t that the Brackeens didn’t get custody — because actually, oh, wait, they did — it’s really what happened to these Native relatives. And this idea that these kids could have stayed not only with their family, but with their tribe and with their culture, and instead, that relationship was severed. And so I think the cases show just exactly why ICWA is still needed. 

What we know about how ICWA works zooming out, there’s actually not federal data, because there was going to be federal data under Obama, and then Trump rescinded it. And so it is now a lawsuit I haven’t checked in on in a while, over whether or not the federal government would collect ICWA data along with what’s called the AFCARS data, but it’s the big national data that’s collected around kids in foster care.

But what we can see in pockets and this research comes from the Casey Family Programs, is that when people comply with ICWA, so when people notify the tribe, when people do active efforts with parents, so when people involve the tribe and work with the tribe, kids have better outcomes. And those better outcomes mean staying in foster care for less time, and finding what people call permanency — basically, that home where kids are going to stay, finding permanency sooner.

JS: Wow. 

Finally, I want to get back to Gorsuch’s clip about how if the Court accepts Stone’s view of Congress’ power, that the Court will be just busy for years, striking things down. I want you to say a little bit more about that. Because, to what you’re saying, it seems like, Wait, is that the point of why we’re here? 

So maybe talk a little bit more about what the ramifications of or potential fallout from this case is, and how challenging ICWA may be part of a larger strategy?

RN: Yeah, absolutely. 

I think that there’s a lot of evidence that the well-being of Native children is not the focal point of the special interests that brought this lawsuit. I mean, the Brackeen lawsuit didn’t organically raise out of the Brackeens trying to adopt a Native child. There has been a coordinated campaign to strike ICWA down over the past decade. And these lawyers, like Mr. McGill, are out there actively looking for clients. And so they found the Brackeens through an adoption attorney. 

And so what we found was that a handful of private adoption attorneys, a handful of right-wing organizations — who are actually all kind of getting their money from the same place, the Bradley Foundation — and these corporate lawyers, like Mr. McGill, have been leading the charge to get ICWA struck down. It’s actually a really, really small group of people. 

And I think we can see the ulterior motives that all those people have. The private adoption industry basically fights any regulation that makes it harder to adopt children at all. And that’s because there aren’t enough available children for adoption. There are more people who want to adopt than kids who are available. What we found within internal documents around the funding for the anti-ICWA campaign when it came from right-wing organizations was that it was about building state-based infrastructure, conservative infrastructure through litigation. So it wasn’t even about tribes or Native kids or child welfare, it was just this broader political agenda. 

And then I think with the corporate lawyers, I think they kind of showed their hand when they filed the Maverick Gaming case that, look, this isn’t just about Native kids, these legal theories have broader implications in the arena of federal Indian law. And so I think Gibson Dunn and Matthew McGill have already kind of shown us what their ulterior motives are by filing that lawsuit. 

And I think, for Indigenous nations, I was at the Supreme Court during oral arguments, and there were a lot of tribal citizens and tribal leaders who were there. And it was a really heavy day. I think what it feels like for tribes is just that we’re still fighting for our legal existence, we’re still fighting to maintain the treaty rights that we have. And what’s happening again, now, that is so tragic, and what’s happened before is that our children are the first line of attack, our children are sort of the first line of defense, they are the tip of the spear in this project of colonization. And I think that’s a really heart-wrenching thing for tribes to see, not only how much is at stake in this case, but that they’re using our kids, again, to attack tribes. 

And so just briefly to explain the broader implications in terms of legality: I kind of explained the equal protection argument, so this idea that you can’t treat tribes or tribal citizens differently. I mean, it’s everything; I can carry an eagle feather because I’m a citizen of a federally recognized tribe; I can get my health care at IHS; I can participate in my tribal government. If I commit a crime on my reservation, who can prosecute me is different. I mean, it’s a whole scheme of laws that could crumble if you can’t treat Native people differently based on race — tribes and tribal citizens differently based on race. 

And then the other big argument they’re making is just that Congress doesn’t have this authority. And you heard Gorsuch being like: Well, what about this? And what about that? Congress has passed a lot of laws that govern the Federal relationship between tribes and the U.S. federal government. And so if Congress doesn’t have that authority, well, then what happens with all these laws?

And it’s kind of ironic because there have been periods of time when the laws that Congress passed didn’t really benefit Native people. We had the termination era; we had the allotment and boarding school era. And since the ’70s, we’ve had what people call the self-determination era, where Native folks organized and we finally got laws that, while not perfect, do more good than harm. And now people are coming back and saying: Ooh, Congress can’t do that. I think it feels a little late to be saying that! 

JS: Well, also, it’s the whole idea that there are obviously racial elements here, but the whole scheme and they want to make that the point, whereas the point is that tribes are recognized as a political, as a sovereign entity with a relationship, like a foreign government, right?

RN: Absolutely. 

JS: So that’s what was driving me crazy the whole time was like, they seem to willfully want to come back to race, where the lawyers would be saying, well, but actually this is about this relationship. But I guess maybe that is kind of what you’re saying, it sounds like it is the point to muddy the waters because it becomes a lot easier to get rid of casinos on tribal land if those were just allowed because of race and not because of a political class. 

RN: Yeah, no, absolutely. And that is exactly what Mr. McGill argued in the federal complaint they filed on behalf of the non-Native casino developer. They said: Hi, I’m a non-Native casino developer, I can’t operate these types of gaming facilities that tribes in the state of Washington can, and I am not making all this money that they do. And that’s racial discrimination. 

And so: It’s about money! [Laughs.] And so yeah, I think that that’s exactly right. It’s sad, but I think the sovereignty that tribes still do have, some folks see it as a threat and would benefit from it being diminished. And I think that that’s the broader goal of this case, this lawsuit.

JS: Rebecca, thank you so much for joining us.

RN: Thank you so much for having me!

JS: That was Rebecca Nagle, a journalist, citizen of Cherokee Nation, and host of This Land podcast. (Sidenote, it is excellent! If you haven’t listened yet, I highly recommend that you do.)

[End credits music.]

JS: And that’s it for this episode of Dissent, a production of The Intercept. This episode was produced by José Olivares and Laura Flynn. Roger Hodge is editor in chief of the intercept and Rick Kwan mixed our show. 

If you’d like to support our work, go to theintercept.com/join. Your donation, no matter what the amount, makes a real difference. If you want to give us feedback, email us at Podcasts@theintercept.com. Thanks so much. 

Until next time, I’m Jordan Smith.

The post Dissent Episode Three: How an Adoption Case Could Unravel Tribal Sovereignty appeared first on The Intercept.

The North Carolina Supreme Court rejected a partisan gerrymandered congressional map drawn to heavily favor Republicans last year. The map violated the state’s constitution. The North Carolina legislature is now arguing before the U.S. Supreme Court whether the state legislature has the authority to override the court and ignore its own constitution. The case, Moore v. Harper, raises the prospect of the independent state legislature theory — a fringe theory that, if the Supreme Court rules in favor of, would give state legislatures unfettered authority, remove checks and balances, and undermine future elections. In the second episode of Dissent, host Jordan Smith and Elizabeth Wydra of the Constitutional Accountability Center closely examine oral arguments and unpack how a favorable or even a middle-ground ruling would radically change elections.

[Remixed Intercepted theme music.]

JS: I’m Jordan Smith, a senior reporter for The Intercept. Welcome to Dissent, an Intercepted miniseries about the Supreme Court.

Neal Kumar Katyal: There are three Federalist Papers on the Elections Clause. Not a word, anything like this. What he would do is gut the ordinary —

Ketanji Brown Jackson: So -—

NKK: — checks and balances.

KBJ: And so, to me, it’s not so much the sort of troubling worry of we have the state legislature violating federal constitutional law because we as the Supreme Court and other courts in the federal system can look at that because it’s a question of did they violate the federal Constitution. Here, he’s saying — no, we do have to comply with the federal Constitution; what we can violate is the state constitution. And what I don’t — I can’t wrap my mind around that argument.

NKK: I can’t either, Your Honor. In — [fades out].

JS: Listening to the Moore v. Harper oral arguments about this notion of an independent state legislature, I — like Justice Ketanji Brown Jackson and former acting U.S. solicitor general Neal Katyal — could not wrap my mind around the logic of the case. 

As U.S. Solicitor General Elizabeth Prelogar also argued, the theory before the Supreme Court would “sow chaos” in state and federal elections.  

Elizabeth B. Prelogar: Throughout our nation’s history, state legislatures enacting election laws have operated within the bounds of their state constitutions enforced by state judicial review. This practice dates from the Articles of Confederation, and the Framers carried it forward by using parallel language in the Elections Clause to assign state legislatures a duty to make laws. Text, long-standing practice, and precedent show that the Elections Clause did not displace this ordinary check on state law-making.

Petitioners’ contrary theory rejects all of this history and would wreak havoc in the administration of elections across the nation.

Their theory would invalidate constitutional provisions in every single state, many tracing back to the founding.

JS: The basic idea behind this so-called theory is that the Constitution’s Election Clause gives to state legislatures — and only state legislatures — the power to set conditions for holding elections for federal office — like the House of Representatives. And that, essentially, no one — and definitely not a state supreme court — can really stop them from doing whatever they want, like restricting voting by mail or decreasing the number of polling places, or by shamelessly gerrymandering an election map.

To break down this case and its far-reaching implications, I’m joined by Elizabeth Wydra. She’s the president of the Constitutional Accountability Center, a think tank, law firm, and action center dedicated to fulfilling the progressive promise of the Constitution’s text and history. 

Throughout her tenure, she has filed more than 200 briefs on behalf of the center and so many others – including preeminent constitutional scholars and historians; state and local government organizations; and other groups, like AARP and the League of Women Voters.

Elizabeth, welcome to Dissent.  

Elizabeth Wydra: Thank you so much for having me. I’m thrilled to be with you.

JS: OK — to start, can you give us a little background on the case, tell us who the parties are, how it landed at the court? And what is the theory that the North Carolina legislators are presenting?  

EW: Yes. Absolutely. 

So there is a very important case at the Supreme Court this term called Moore v. Harper, and it comes from an extreme partisan gerrymander in North Carolina for the North Carolina state elections. A lot of people, I’m sure, are familiar with the idea of a gerrymander, but the way it worked out, in this case, was: Let’s say there was pretty much an evenly split popular vote in the state of North Carolina, under this extreme, partisan, gerrymandered map it would have resulted in like 10 Republican seats and four Democratic seats, even if it was an evenly split popular vote. 

So because the North Carolina State Constitution guarantees free elections, and here, it certainly did not seem as if it was a free election, because even if more people voted for Democrats, [laughs] they’d somehow end up with Republicans through the map, the North Carolina Supreme Court struck down the extreme partisan gerrymandered map and they went through a couple of iterations of this, and then a group of North Carolina Republican state legislators pushed the argument that because the Constitution gives to the state legislatures — the Constitution uses the term legislatures — the power to regulate the time, place, and manner of decisions, that this state Supreme Court of North Carolina couldn’t enforce North Carolina state constitutional guarantees, and basically that the North Carolina State Legislature had unfettered authority to draw the map however they want, even if it violated the North Carolina State Constitution. 

So we get up to the Supreme Court. And there, we see really a clash of the conservative majority against itself. [Laughs.] We see really spectacular legal advocacy from the side of the folks who are pushing back against this idea. And the backdrop for all of this is what’s known as the independent state legislature theory, which is what the North Carolina Republican legislators are pushing, this idea that state legislatures can do whatever they want with respect to elections without checks or balances, it would have an important impact not just on the drawing of congressional maps, or partisan gerrymanders, but it could have a huge impact on democracy itself. 

And so the independent state legislature theory is really, incredibly important. And that’s what’s at the heart of the Moore v. Harper case.

JS: We should be clear on the constitutional clause we’re talking about, and it seems like in the whole framework of the thing, it’s kind of unremarkable, and it’s just sitting there. 

But this is what it is. I was going to read it so everybody knows exactly what we’re talking about. 

Here’s the clause: “The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of choosing Senators.”

So if you could break down what’s happening here with this clause, and how the role of “the Legislature” is being used to further the objectives of the North Carolina legislators? 

EW: Yeah, so I guess as a backdrop: The Constitution, in many places, has layered authority for things. So sometimes state and local governments have certain authority; sometimes the federal government has the authority. Sometimes, like in this instance, the state has some authority subject to checks by the federal political branches, or the federal courts. And so what I want to acknowledge is that if you are a layperson and you’re reading this, it does say the word legislatures of the state — so you might be: Oh, OK, well, the North Carolina Republican state legislators have a good argument! 

No, they don’t! [Laughs.] And that’s because certainly when the Elections Clause was drafted by the framers of the Constitution in the 18th century, the idea that state legislative activity included other aspects of state lawmaking. So that would include a governor’s veto of state legislative action; it would include state court checks on state legislative activity. That was understood to be part of the legislative action of a state. 

In addition to that kind of mechanical understanding from the founding — not to be too shady about it, but the drafters of the Constitution, like James Madison, were extremely suspicious of, let’s say, the quality of state legislatures. So the idea that they would have given them in the Elections Clause, this unfettered power without any checks or balances, just doesn’t really match up to the feelings that the drafters of the Constitution had about state legislatures. 

But I think even more important, we don’t want to go on just vibes when it comes to interpreting the Constitution, as Justice Ketanji Brown Jackson noted in the oral argument that was held at the Supreme Court in Moore v. Harper, state constitutions create state legislatures. It’s all sort of the same organism. And so if you have the state constitution setting out certain guardrails for election processes, whether it’s with respect to voting rights, whether it’s with respect to the drawing of maps, or, as I’m sure we’ll talk about in more detail, the choosing of electors when it comes to presidential elections, which comes in Article Two of the Constitution, the idea that this those state constitutional restrictions apply to state legislative activity is just an organic part of how this stuff works. So what might seem like a reasonable argument at first blush really isn’t.

JS: Exactly. And we’ll get into some detail about all of these things for sure. But just first, for listeners, there were a lot of lawyers arguing this case – including current U.S. Solicitor General Elizabeth Prelogar and two former solicitors general, Neal Katyal and Donald Verrilli – each of whom argued against this independent state legislature thing — or, ISL thing, for short – on behalf of the various parties. And then there was lawyer David Thompson, representing the North Carolina state legislators who are hoping the Supreme Court will essentially bless this wholesale reimagination of the Elections Clause.

Here’s Thompson with his opening pitch to the justices:

David H. Thompson: Mr. Chief Justice, and may it please the Court: The Elections Clause requires state legislatures specifically to perform the federal function of prescribing regulations for federal elections. States lack the authority to restrict the legislatures’ substantive discretion when performing this federal function. 

As Alexander Hamilton wrote in Federalist 78, the scope of legislative authority is governed by the commission under which it is exercised.

JS: And here’s Katyal, essentially calling this whole idea utter madness: 

NKK: To accept Petitioners’ claim, you’d have to ignore the text, history, and structure of our federal Constitution as well as nearly every state constitution today. Petitioners say for two centuries nearly everyone has been reading the clause wrong.

That’s a lot of wrong — and a lot of wrong past elections. Frankly, I’m not sure I’ve ever come across a theory in this Court that would invalidate more state constitutional clauses as being federally unconstitutional, hundreds of them from the founding to today.

It’s worth taking a pause to think about what petitioners are saying. They claim the word “legislature” means a species of state law that has literally never existed.

JS: And here’s Prelogar, arguing as friend-of-the-court in support of the various respondents:

EBP: There is no category of state law that has previously existed that detaches the state legislature from the state constitution and allows it free rein to have whatever laws it wants without that state constitutional check. And we think that the text and the history and precedent forcefully reinforce this idea that the framers would have understood that when they were giving this law-making power, it carried with it those ordinary checks and balances.

JS: And Verrilli – basically, same vibe:  

Donald B. Verrilli, Jr.: I do want to just interject [laughs] one more time that they have said that this decision is a fair representation of North Carolina law. They are not challenging it under the standard I articulated or any other standard. They have made a different argument, which is that this is categorically a violation of the Elections Clause for state supreme courts to invoke — to apply — vague and general provisions. And so I’m happy to keep answering Your Honor’s questions, I am. But I just want to reinforce that they have conceded that this is a fair interpretation of North Carolina law.

JS: So, going back to the point that Verrilli was making, one of the many things, to me that’s really interesting – [laughs] or maybe baffling might be a better word – is that Thompson, arguing in favor of the ISL, on behalf of the legislators, made it clear that they agreed that the North Carolina Supreme Court had actually gotten the law right — that, in other words, they’d properly interpreted the state law and the state constitution, including its free elections clause, to determine that the map the Republican lawmakers had drawn was, essentially, an illegal gerrymander under state law. But I guess they’re arguing that it doesn’t matter that the [state] supreme court didn’t have the authority to go there.

You’ve got to go there. And also, I’m curious what you make of that concession – that they are about what the Supreme Court here did, that they actually got it right.

EW: That’s a really great question. And what Don Verrilli, who is a fantastic lawyer, is doing here is making clear to the Supreme Court that the proponents of independent state legislature theory in the Moore v. Harper case are swinging for the fences. They are asking for an extreme — extreme — understanding of what independent state legislature theory would mean, which is that even where the North Carolina State Supreme Court is getting the North Carolina constitution correct, and the state legislature engaged in unconstitutional under that state constitution partisan gerrymander, they cannot be — they cannot be — thwarted in their efforts to put this partisan gerrymander into place because, under their theory, state legislatures have unfettered authority. And what Don Verrilli is doing in that clip is trying to convince some of the perhaps more moderate, although it’s difficult to use that label with respect to the Supreme Court, but some of the more moderate conservative members of the court from adopting a middle ground. 

Because one thing that did seem fairly clear from the argument was that it would be tough for the Republican state legislators to get a five-justice majority for that extreme view that state legislatures can do whatever they want; they can unquestionably violate the state constitutional provisions and no one can do anything about it if you’re a member of the State Supreme Court. They did have a weird concession at one point that maybe a governor could veto it. But what Don is doing in that clip is trying to say: If you want to adopt ISL-lite, the idea that if a state Supreme Court has gotten its own standards wrong, then you could step in and say it improperly asserted authority over the state legislature. But that’s not even what they’re asking for. They are swinging for the fences with the broadest possible theory that they can.

JS: Yeah. At one point, earlier in the oral argument, Justice Sonia Sotomayor says the proponents of the ISL are trying to rewrite history. 

Sonia Sotomayor: Yeah, if you rewrite history, it’s very easy to do.

DHT: I’m not rewriting history, Your Honor.

What we’re saying is that when it says all elections, it’s referring to the offices that were created by that constitution. You can see that in Vermont. It says all freeholders shall be eligible for office. It’s not talking about the presidency of the United States, because there’s an age qualification. It’s talking about the —

SS: So why is it that in all of those states [sound of page turning] the legislatures understood that all elections meant that you were going to have paper elections, ballots, in both federal and congressional?

JS: This is a Supreme Court that professes this deep fidelity to original meaning, to this text, to this history. And yet here, Thompson had very few actual historical sites for this proposition that the state legislature is this free-wheeling, hands-off entity when it comes to federal elections. And this stands in stark contrast to the history y’all cite in your amicus brief. Could you tell us about the history, where the legislature comes from – and importantly, how this entity was viewed back at the founding?

EW: So I think this case is really remarkable, in that it puts the conservative supermajority on the Supreme Court’s fidelity to originalism to the test. Because here it’s unquestionably clear that the extreme proponents of the independent state legislature theory are arguing without any basis in constitutional text or history. 

At the time that the Elections Clause was written, the idea of legislatures of the states included checks and balances, like the state courts, like the governor, the idea that limits in state constitutions constrained state legislatures, and that was part and parcel of the idea of a legislature, were just commonly known and accepted by the drafters of the Constitution. 

And they had skepticism about state legislatures and the quality, perhaps, of their decision-making. And so they would never have given unfettered authority in the Elections Clause to state legislatures without those kinds of traditional checks from state courts and state constitutions. 

And I think what’s really interesting is, of course, we at the Constitutional Accountability Center make these originalist arguments against independent state legislature theory in our brief, but we have a lot of company in this case, from conservative originalists. Some of the leading lights of the conservative legal movement, like one of the co-founders of the Federalist Society, and several deeply conservative and well-respected, in conservative circles, judges, appointed by Presidents Bush, came out and said these arguments in support of ISL are complete bunk.

And so you have a cross-ideological, really just tsunami of argument against independent state legislature theory. And if you have these justices on the court who profess to be originalists ignoring all of that, it’s really going to say that this might not be so much about originalism and it might be more about pursuing a political partisan agenda.

JS: Yeah. And just sort of [laughs] naked power, it seems like. 

EW: Yeah. 

JS: Yeah. [Laughs.] There’s an interesting point — or I thought it was interesting, let me see what you think — where Justice Amy Coney Barrett is trying to get at history and saying: OK, well, at the time of the founding, would it be understood that the legislature had the power to set elections? And if that was a baseline understanding, then the second part of the clause, which allows for Congress to overrule them, would’ve been seen as a check on their power that already existed and not that this was some clause that was setting up some new power for the state legislature as Thompson seemed to be arguing. 

I think I read that right, but I was curious if you had any thoughts about that piece of that argument.

EW: Justice Coney Barrett, it was interesting to try to figure out where she was coming from. She definitely seemed skeptical of the North Carolina Republican lawyers’ presentation of history and also the conclusions that he was drawing about that, the concession that I think Chief Justice Roberts brought out of him that a governor could veto state legislative actions with respect to the elections clause — it didn’t seem to be consistent at all with his textual argument that legislatures get to do whatever they want. 

And so, Justice Coney Barrett did seem to pick up on that. And I think that’s why a lot of us, after listening to the argument, counted perhaps her and Chief Justice Roberts in the camp of people who weren’t going to maybe jump in with both feet on the independent state legislature theory. But I think there is definitely a possibility that there’s a majority on the court that could leave the door open for some variation of this. And that could do a lot of damage, even if the court doesn’t take the most extreme view of independent state legislature theory, which I certainly hope they will not.

JS: Another thing that struck me was that Justice Jackson kept coming back over and over again to a very basic question, which was: If the state legislature is a creation of the state constitution — and that’s where it derives its power — then how can it act outside the scope of power granted to it by the state constitution.

So, here’s a clip of one of those moments: 

KBJ: If the state constitution tells us what the state legislature is, and what it can do, and who gets on it, and what the scope of legislative authority is, then, when the state supreme court is reviewing the actions of an entity that calls itself the legislature, why isn’t it just looking to the state constitution and doing exactly the kind of thing you say when you admitted that this is really about what authority the legislature has? In other words, the authority comes from the state constitution, doesn’t it

DHT: No, Your Honor, it’s a federal function, and we know that from Leser. So this Court, in Leser, held it’s a federal function. When these duties are assigned to the states, that is a duty that is assigned by the federal —

KBJ: Yes, it’s a duty. The duty is to make this legislative determination — that is, the determination about elections. 

My question is: Where does the entity’s power come from to make any determinations at all, right? I mean, yes, I see that the federal Constitution is giving them the right to make a particular determination, but they’re not giving just anybody in the state that right. They’re giving somebody called the legislature. And, in order for us to have a thing called the legislature, we have to look at the state constitution to determine what that entity’s powers are, how they can be exercised; other than that, I don’t really understand how the legislature is authorized to act at all.

JS: Throughout the argument, she kept saying, basically: Yeah, yeah, yeah, yeah — but this! 

Right? So I’m curious what you make of this. Explain what she’s trying to get at over and over again here, that Thompson regularly seems to be sidestepping or just flat-out avoiding answering. 

EW: Yeah, I mean, it is a fundamental flaw in the logic. The proponents of independent state legislature theory are saying that they can act contrary to the very charter that creates them. Justice Jackson, one of the things that I really enjoyed seeing from her after she joined the bench, is the way that she just zeroes in on these fatal flaws in the logic of advocates’ cases. It’s probably terrifying if you’re arguing before the court [laughs] — but this was where she just really, I think, got them. 

And Thompson never came up with a good response to Justice Jackson, because there isn’t a good response. The idea that the state legislatures can ignore the state constitution, when the state constitution creates them, just doesn’t make any sense. And the state courts, applying the state constitution, that’s how those guardrails are applied. And she just really got to the point, and he never really was able to get around that.

JS: No. If not the state constitution, where would the legislature come from? [Laughs.] 

EW: Yeah. 

JS: And if it doesn’t come from anywhere else, then how can it not be bound by the thing that created it and, as you said, gives it the guardrails that it operates under in every other way?

EW: Exactly.

JS: I guess, except for: Asterisk! This one. [Laughs.]

EW: Yes. Right. 

It doesn’t make any sense. Thompson, the lawyer for the Republican legislators, never really came up with an answer. But some of the conservative allies of this argument on the court did try to suggest a way around that by saying, perhaps state courts, when it comes to the Elections Clause, have to be enforcing identifiable standards. And so they couldn’t be these vague, broad terms; they had to be identifiable standards. And so that was kind of the way that other conservatives tried to get around Justice Jackson’s trenchant point, but there’s no way under the most extreme theory that you can get around that.

JS: No. And also to that point, they’re like: Well, there’s these squishy things, like fair elections, what could that possibly mean? How could we possibly know? 

And I think there’s, at one point, where Sotomayor is like: What do we mean when we say it’s free speech? What do we mean, when we say due process?

I guess, in whatever the theory is about these mushy things, that somehow the federal court would be able to come in to decide, I guess, when it’s too mushy. 

EW: Yes. 

JS: But I mean, that makes no sense to me, either, because first of all, we have the same sort of mushy — that’s not the right word — we have the same sort of free-flowing kind of ideas that are embodied in our constitution that they still can’t agree on lots of times what they mean, let alone what they know what North Carolina meant by it, or Wisconsin or whoever else. I just thought this is a dangerous theoretical middle ground — 

EW: Yes. 

JS: — or we’re gonna give you some out here, and I find that — it scares me a little bit, because I don’t think that they’re better positioned to decide what that meant for the history of North Carolina or any other state than those Supreme Court justices in those states would be.

EW: Yeah, you’re exactly right. And this is where we get to some of the hypocrisy of some of the conservative justices and advocates, I think. We’re used to hearing from conservatives about federalism and states’ rights. And here, instead of broad deference to state courts, they floated this idea that unless state courts were doing something that was really along the lines of an identifiable and specific standard, the federal courts would come in and say, no, no, no — and that was a little unclear exactly what they were talking about there. 

But you’re exactly right: Our Constitution, and many state constitutions, have broad guarantees. And for a lot of us, that’s a good thing. We should have broad guarantees in the Constitution that then are translated into more specifics by legislation, by policymaking, by the political branches. But, often conservatives we’ve seen in this court, whether it’s with respect to reproductive rights, or other areas of equality and equal citizenship, [have] very limited vision of what those broad terms mean in the Constitution. And so there does seem to be a little bit of a freakout by some of these conservative justices about what are intentionally broad and sweeping guarantees. 

The idea of free elections, which is what we’re talking about under the North Carolina State Constitution, is a big term. It’s a big guarantee. It’s a broad guarantee. And it should be! [Laughs.] And so if we have a ruling from the court that cuts back on state courts’ ability to protect voter rights; to protect against suppression and obstacles being placed on the right to vote, in addition to partisan gerrymandering — not even getting to the fake elector scheme that former President Trump and his allies were trying to push using this same independent state legislature theory, there could be a lot of mischief made that that would be to the detriment of our democracy.

JS: Yeah. 

So we played that clip of Justice Jackson talking to Thompson, and Thompson tried to respond, and then Justice Sotomayor jumped in. 

DHT: Well, Your Honor, we know that’s not right because, in Leser, the people of Maryland tried to prevent women from voting, and the way they did that is they put in their state constitution a prohibition on adopting the Nineteenth Amendment, and then it came to this Court and this Court said that this is a federal function and that substantive limit of the state constitution was inapplicable. So that’s what we’re dealing with here, is a federal function.

SS: But that was because it violated the federal Constitution, not because it violated the state constitution. But let me go back to what I don’t fundamentally understand about this case …

JS: And a bit later Thompson and Sotomayor have a back-and-forth on the difference between substance and procedure. 

SS: Well, it seems that every answer you give is to get you what you want, but it makes little sense. We have more than one occasion that we describe the task in Mistretta of distinguishing between substantive and procedural rules as a logical morass that the Court is loath to enter.

DHT: And one —

SS: And I simply — what I don’t understand is the question that Justice Jackson asked you, which is: If judicial review is in the nature of ensuring that someone’s acting within their constitutional limits, I don’t see anything in the words of the Constitution that takes that power away from the states.

JS: And this kind of gets to, what you were talking about, the veto thing, I think.  So I’m hoping you can try to kind of explain the significance of this idea; this procedure versus substance thing hurt my brain a little bit.

EW: [Laughs.]

JS: Because, it seems like Thompson is saying: Cool, right, so the legislature passes something and if it has this rote hurdle to cross — say, it has to be presented to the governor, and she has the power to veto it under state law — well, that’s just “procedure.” But anything “substantial,” that I guess would give anyone else — especially the courts — the opportunity to change what the legislature has done, then that’s out.

But what I don’t actually get is: Don’t they both get to the same place? Like if there’s an election map and the governor is like: Nope! Veto! 

Isn’t that basically a substantial change? So, is this just weird parsing without actual difference? Can you just help my brain wrap itself around this [laughs]? Because I found it all, whew, a little hot.

EW: Yeah. No one was really buying this distinction. 

JS: [Laughs.]

EW: Well, I shouldn’t say that. I don’t think there was a majority of justices on the Supreme Court who were buying that distinction.

It seemed to be an attempt to say something like the procedures by which a decision is adopted or made can be enforceable by the state courts or by a governor. But the actual substantive guardrails can’t be enforced by state courts.

And that just doesn’t really make any sense, other than through kind of a results-oriented, backward, [laughs] reverse-engineered logic. And I think that part of this when it was argued a little more coherently by some of the friendlier justices on the court in their questioning of the lawyers who were pushing back on independent state legislature theory, was this idea of trying to limit some of the interference on state legislatures when it comes to election procedures. And that’s where we get to the ghost of Bush v. Gore, where all bad things come from. [Laughs.]

JS: I was just going to bring this up. So why don’t we just go to that. Because the thing that keeps coming up over and over is Bush v Gore. So just a reminder that it is the court case that essentially ended the recount in Florida back in 2000, and landed George W. Bush in the White House. 

So why, why, why Bush v. Gore? 

EW: I know, right? 

JS: And what’s the significance and how terrified should I be? [Laughs.]

EW: Yes. 

JS: That this has somehow raised its head from the — ugh.

EW: It was supposed to be fact-bound, but somehow it still sticks around. 

JS: It’s escaped its cage! [Laughs.]

EW: Yes. Exactly!

And it’s interesting because many of the now-justices when they were lawyers, the conservative justices, worked on the Bush v. Gore case, on behalf of President Bush. 

So, in Bush v. Gore, there was a side argument from the late Chief Justice Rehnquist, a very conservative jurist, who argued that Florida didn’t follow its own procedures. And so the Florida State Supreme Court just kind of got the procedures wrong. And so that was an acceptable reason for interfering with the Florida State Supreme Court’s adjudication and decisions in the recount. 

Because again, normally, there is this deference that we provide to state courts when it comes to their interpretation of state law. Because they presumably are the experts and not the federal courts, who are experts in federal law. And so this kind of side argument from Chief Justice Rehnquist focused on the state court, presumably getting it wrong. And this was different from the majority’s basis for their ruling, which was obnoxiously on the equal protection clause of the federal Constitution. 

All of that is a long way of saying that there was sort of this attempt by some of the conservative justices in Moore v. Harper, who might not be willing to take the train all the way to crazy town when it comes to independent state legislature theory, but might be willing to sort of get on for half of the ride to say that if it seemed like state courts were not properly enforcing the state constitution, that there could be limits on the way that they check state legislative activity when it comes to federal elections. 

But that is very unclear, really, what that means. And it really would open the door, I think, to all sorts of shenanigans, and litigation, and major questions about something as sacred and fundamental to democracy as the vote of the people being understood to be reliable and predictable in the sense of: you cast your vote; your vote gets counted; your vote has meaning. That is concerning.

JS: Yeah, actually, there’s a great — I’m sure you remember — there’s a great part where Justice Elena Kagan really hit home, the ramifications, the fallout, I guess, essentially, that would come from an embracing of the ISL. Let’s play that clip:

Elena Kagan: [T]his is a theory with big consequences. It would say that if a legislature engages in the most extreme forms of gerrymandering, there is no state constitutional remedy for that, even if the courts think that that’s a violation of the Constitution.

It would say that legislatures could enact all manner of restrictions on voting, get rid of all kinds of voter protections that the state constitution, in fact, prohibits. It might allow the legislatures to insert themselves, to give themselves a role, in the certification of elections and the way election results are calculated. 

So — and, in all these ways, I think what might strike a person, is that this is a proposal that gets rid of the normal checks and balances on the way big governmental decisions are made in this country. And you might think that it gets rid of all those checks and balances at exactly the time when they are needed most, because legislators, we all know, have their own self-interest. They want to get re-elected. And so there are countless times when they have incentives to suppress votes, to dilute votes, to negate votes, to prevent voters from having true access and true opportunity to engage the political process.

JS: Following on that, it’s sort of: If the Supreme Court rules in favor of North Carolina, and we could go full train to crazy town or even just make a stop at the depot, however you want to take that, how would that affect the way elections are run? And what could be the ramifications, even, maybe, beyond what Justice Kagan has outlined during argument?

EW: If you start from the facts of the Moore v. Harper case, and then work your way out from that, obviously it would allow extreme partisan gerrymanders to go forward without meaningful checks. This is a real problem. You have states where, again, the popular vote, if you look at what the votes said in terms of who people voted for, and then look at the way that they’re translated into representatives, it bears very little relation. In this case, it would have been if there was about an evenly split popular vote, it would have gone to about 10 Republicans and four Democrats. 

And so you know that the extreme partisan gerrymandering maps — just the facts of this case are very concerning. And because the U.S. Supreme Court has said recently that they do not think that the federal courts have a role to play in striking down extreme partisan gerrymanders, that really would allow them to continue without any recourse for voters. So if you then expand from that, worth looking at state limits on the right to vote, voter suppression, making it harder for people to cast their votes, whether that’s changing voting procedures or the way that you register to vote, those could go forward without any sort of state court checks and balances.

And then jumping from Article One of the Constitution to Article Two, which deals with the way in which the President of the United States is elected.

JS: Actually, let me stop you, because we might as well just put that in the mix now because I was going to ask you about that. Because there’s this other piece, right, which is this Article Two piece. Maybe you can say what that is, because I think the fear I hear, in part, from what I’ve heard and read, is sort of like that this is like one step. This form of independent state legislature is one step, and there could be something far worse. And that is based on this ISL buried in Article Two. 

So maybe you could just unpack that a little bit, because I’m not sure that everybody knows exactly what that is. Although [laughs] we’ve heard fake-electors-this, fake-electors-that, but how does this all kind of tie together, I guess?

EW: Right. So the section that we’re talking about from Article One of the Constitution in Moore v. Harper deals with the time, place, and manner of congressional elections of representatives, and the ability of the legislatures of the states to prescribe the manner of elections. 

And then when you get to Article Two, and the clause that deals with the election of the President, it talks about the legislatures of the state. So again, the same wording, being in control of setting the manner of choosing electors to the electoral college. 

So generally, when we’re talking about how to interpret legal phrases and words in the laws, if it’s interpreted one way, in a related context, you interpret it similarly in the other context. And so the concern is that if there is this unfettered authority given to state legislatures with respect to the time, place, and manner of congressional elections, in that part of the Constitution, when it comes to the manner in which electors are chosen for the president in Article Two of the Constitution, then that same extreme independent state legislature theory would apply — and then you would get yourself into situations like we saw being pushed by team Trump, where they were urging state legislators to put up a whole new slate of electors that went against the will of the people in that particular state, and that would have kept President Trump in power, despite the vote of the people to the contrary.

JS: So nothing that much to worry about. [Laughs.]

EW: No, it’s definitely something to worry about!

JS: Ugh.

EW: And I think sometimes I understand that for folks who are not deeply entrenched in this, your eyes start to glaze over when it’s gerrymandering, and independent state legislature theory, and all of this. And in some ways, I think that was very savvy for proponents of the independent state legislature theory to bring it to the court in this particular context, and not in perhaps the most dangerous context of trying to keep a president in power, despite the vote of the people electing a different president, you know? And so I think there should be no mistaking that that is what we would be headed toward if independent state legislature theory is accepted in this particular case.

JS: Neal Katyal’s opening was sort of lasered in.

NKK: Thank you, Mr. Chief Justice, and may it please the Court: For 233 years, states have not read the Elections Clause the way you just heard. There are two reasons to affirm: One is that when enacting legislation, there’s no such thing as an independent state legislature. The other is that North Carolina statutes authorized what the North Carolina court did.

JS: So, on our first episode of Dissent I spoke to legal analyst Jordan Rubin about why the court would even take up this case, right? The point that Katyal is making here underscores that question. What do you make of the court taking the case in the first place?

EW: Yeah. I think it’s important to remember that to take a case you need four justices. And to win a case you need five. So we already know that there are a number of justices on the court who either are embracing the theory, I’d put under that category probably Justices Alito, Gorsuch, and Thomas. And then at least, Justice Kavanaugh, who, during his time as an advocate, argued, in a certain sense, for the independent state legislature theory. So I’m not surprised necessarily that there are four justices who wanted to hear it. 

Again, it’s tough using this label for this court, but it’s all in context, the more quote-unquote moderate conservative members of that conservative supermajority, like perhaps Chief Justice Roberts, might have wanted to tweak the theory to make it a little more palatable and not quite the extreme version that is being put forth by some conservatives. We don’t know because of the lack of transparency around the certiorari process which four justices — or maybe more — voted to hear the case. But I can see some reasons why they might want to. 

And again, if you’re someone who wants the independent state legislature theory to move forward, it’s probably better to have it in the North Carolina redistricting case, rather than a Trump v. Democracy case. And I will say, fortunately, we saw in most of those efforts from team Trump, when they tried to push this, they were roundly rejected by pretty much every court that John Eastman and company tried to push this theory in.

So yeah, they didn’t need to take the case, because, as Neil Katyal said in his opening, there’s been pretty much unanimous, historical understanding that the legislative process includes state constitutional restrictions as interpreted and applied by state courts. And also Supreme Court precedent itself suggests that that’s not the way that state legislatures operate when it comes to the Elections Clause. And the response from the proponents of ISL was just like: Yeah, overturn all of that. [Laughs.]

JS: [Laughs.] Another thing that Jordan Rubin and I talked a lot about [is] how the court essentially sets its own agenda; it can take these cases; and so that when you come out with an opinion that’s maybe not this full embracing of this thing, and you get trapped in this thing where you’re saying: Oh, well, we have a compromise. And I think that again, it’s dangerous, right? Because they reach out and take this — there was no reason for them to do it. And, I don’t know, I just really didn’t have a sense — we talked about this a little bit — it was very hard for me to tell where people stood at the end of this. And I don’t know even if there’s a compromise opinion that goes halfway to crazy town, like, should we accept that?

EW: No! [Laughs.] 

JS: Do you know what I’m saying? Is that still a problem? Yeah, maybe just go for it.

EW: Yeah I think one of the hallmarks of the current Supreme Court is that because it is so, so conservative really the window has shifted for the types of arguments that are being presented to the court. And those of us who are court watchers, and just all of us in this country, should really resist that shift. Again, so just because you don’t do the absolute craziest thing if you still do something crazy and dangerous, that is still bad. You know?

And so, I think really what we’re seeing — and it’s not just in this case, we’ve seen it, across the spectrum of issues — is that these really extreme arguments are being presented to the court. And in some cases, this court is embracing those theories, with the complete overturning of Roe v. Wade, [which] was the most extreme version of that. 

And just as we’ve seen in some other cases, we’re prepared for the absolute worst, and then when it doesn’t happen, I think there is sometimes this tendency to be like: Oh, OK!

No — do not give in to that tendency here. I mean, look, it could be really bad if they fully embraced the extreme, really unhinged theory of the Republican North Carolina State legislatures. But even opening the door to some version of independent state legislature theory could be extremely dangerous to democracy.

JS: Yeah. And I guess I’ll just wrap up on this, which would be that, obviously, the faith in the Supreme Court has just really dwindled, particularly after Dobbs, which just hit so many people like a bomb. And the cases that they’re taking up now don’t seem to offer much hope for this super-measured court. So I’m curious about your sort of broader thoughts on the direction of the court and about calls for reform. And I’m curious for you, what would reform look like?

EW: When it comes to reforming the Supreme Court, the way that I like to think about it, is to put on the lens of what are the problems of justice that we’re seeking to solve. And those problems are deep. And while I think probably the most obvious, and maybe easy decision of what reform steps to take is adding more justices to the court simply because, we haven’t done it for a long time, the country has grown bigger, our ideas of who is included are broader — thank goodness. And so simply having a few more justices is probably just good government, regardless of what side you’re on. 

But looking deeper at the problems of justice we want to solve, there are real problems of access to justice, of equal justice [and] fairness. And so we at the Constitutional Accountability Center have just done a look at the way in which these questions were looked at during the Reconstruction period after the Civil War. And so many of the same issues were being debated: Should we expand the court? Should we strip jurisdiction? Should we require a supermajority of justices in certain cases?

And one of the things that they did, in addition to expanding the court for a brief period, was they passed legislation that sought to make good on the promises of fair justice and equality in the Constitution. And so I would urge us when we talk about court reform, to think more broadly than just adding justices on the court, although that’s probably step number one, and think more about what can we do to actually create the system of justice that is truly just and is the one that we want, and deserve. 

And for this court, I think that this case, the Moore v. Harper case, is a real test for them, because there is this overwhelming consensus amongst conservative and more liberal scholars that the independent state legislature theory is absolute bunk, even according to the conservative originalist arguments that a majority of these justices profess to follow. And so if they don’t follow that constitutional text in history, where it leads, which in this case would be to slam the door on independent state legislature theory, then it is just going to make absolutely clear that they’re following something other than the law, which many people already suspect is a partisan ideological agenda. And that would just further damage confidence in the court and the public faith that we should and deserve to have in our courts of law.

JS: Elizabeth, thank you so much for joining us. 

EW: Thank you for having me. I really enjoyed the discussion.

JS: That was Elizabeth Wydra, president of the Constitutional Accountability Center. 

[End credits music.]

JS: And that’s it for this episode of Dissent, a production of The Intercept. 

This episode was produced by Laura Flynn and José Olivares. Roger Hodge is editor in chief of The Intercept. And Rick Kwan mixed our show. 

If you’d like to support our work, go to theintercept.com/join — your donation, no matter what the amount, makes a real difference.

If you want to give us feedback, email us at Podcasts@theintercept.com. Thanks so much.

Until next time, I’m Jordan Smith.

The post Dissent Episode Two: Judicial Adventurism appeared first on The Intercept.

Last year, the Supreme Court’s decision to overturn Roe v. Wade and demolish nearly half a century of abortion rights put to rest any remaining questions as to how far the 6-3 supermajority was willing to go to realize its extreme right-wing vision. With the court’s 2022-2023 term in full force, what rights are at stake this year? On the first episode of Dissent, an Intercepted miniseries, host and senior Intercept reporter Jordan Smith is joined by Jordan Rubin, a legal analyst with MSNBC and former prosecutor for the Manhattan District Attorney’s Office. Smith and Rubin outline the Supreme Court’s term and discuss the major implications of the decisions ahead.

[Intercepted theme music.]

Jordan Smith: I’m Jordan Smith, a senior reporter for The Intercept. Welcome to Dissent, an Intercepted miniseries about the Supreme Court.

Last summer’s Dobbs decision — overturning Roe v. Wade and nearly 50 years of abortion rights — dropped like a bomb. It was the first time the U.S. Supreme Court had acted to take rights away from individuals.

Terry Moran (ABC News): [Sounds of protest in the background.] At the Supreme Court today and historic upheaval. In a sweeping ruling that overturned half a century of precedents, five justices ended the right of American women to choose abortion under the Constitution.

Newscaster (Channel 4 News): Fifty years’ worth of women’s rights in America overturned in an instant, as the Supreme Court whose very purpose is to protect civil liberties, took away the constitutional right to abortion.

Nick Schifrin (PBS NewsHour): From anger and anguish to celebration and gratitude, the Supreme Court’s decision to overturn Roe v. Wade shook national politics and sparked a national response that’s playing out in cities and states across the country. As of today, abortion is illegal in eight states that had so-called trigger laws in place for this very moment. Five more states will ban abortion within weeks. And already today courts have blocked bans from going into effect in several other states.

JS: I wasn’t surprised it happened. I’ve covered reproductive rights for a long time, and there were plenty of us who had warned about this moment for decades. Over the last number of years, it was increasingly clear that Roe’s days were numbered. 

This all started with Senate Republicans blocking President [Barack] Obama from seating a judge in 2016 after Justice Antonin Scalia died. 

Charlie Rose: President Obama’s choice, Merrick Garland will go to Capitol Hill this afternoon to meet with Democratic senators.

Gayle King: Republicans are standing by their vow not to consider Garland, or any nominee, before the November election.

JS: Instead, they held that seat for Trump, who had already announced his intention to put on the bench justices that would overturn Roe, never mind what those nominees said during their confirmation hearings.

Justice Neil Gorsuch: It is a precedent of the United States Supreme Court; it was reaffirmed in Casey in 1992, and in several other cases.

Justice Brett Kavanaugh: And one of the important things to keep in mind about Roe v. Wade, is that it has been reaffirmed many times over the past 45 years, as you know, and most prominently, most importantly, reaffirmed in Planned Parenthood v. Casey in 1992.

JS: After the death of Justice Ruth Bader Ginsburg, Trump and his allies rushed through the confirmation of Amy Coney Barrett — even as voting in the 2020 presidential election was underway. 

President Donald J. Trump: It is highly fitting that Justice Barrett fills the seat of a true pioneer for women, Justice Ruth Bader Ginsburg. Tonight, Justice Barrett becomes not only the fifth woman to serve on our nation’s highest court, but the very first mother of school-aged children to become a Supreme Court justice. Very important. [Scattered applause.]

JS: With that, the court lurched right, creating a 6-3 ultraconservative supermajority.

Given all of that, it’s maybe not surprising where we find ourselves. But I think for a lot of people it wasn’t until the Dobbs decision dropped that they were like: Wait — what is happening?

This supermajority court seems inclined to be as maximalist as possible — to do all the things they’ve long pined for: undermining democracy; stripping their disfavored groups of individual rights; finding a way to make sure we’re all as unequal under the law as possible.

OK, so perhaps it isn’t so surprising that public opinion of the court has tanked.

Still, there are a couple of bright spots — not the least of which is the historic appointment in 2022 of the nation’s first Black, female Supreme Court justice, Ketanji Brown Jackson.

Justice Ketanji Brown Jackson: The separation of powers is crucial to liberty. It is what our country is founded on. And it’s important, as consistent with my judicial methodology, for each branch to operate within their own sphere. That means for me that judges can’t make law; judges shouldn’t be policymakers. That’s a part of our constitutional design and it prevents our government from being too powerful and encroaching on individual liberty.

JS: Amid this landscape, it seemed like a good time to break down for listeners some of what is happening now in the Supreme Court — and to talk about where we’re headed.

Joining me now to do that is Jordan Rubin, a legal analyst and opinion writer for MSNBC Digital. He previously served as a prosecutor for the Manhattan District Attorney’s Office and is the author of the forthcoming book “Bizarro” about the secret war on synthetic drugs. Prior to joining MSNBC, he was a legal reporter for Bloomberg Law, where he covered the Supreme Court.

Jordan! Welcome to our first episode of Dissent.

Jordan Rubin: It’s great to be with a fellow Jordan — 

JS: [laughs] 

JR: — and more importantly, with a journalist I greatly admire. So thanks for having me.

JS: Oh, that was very sweet of you. And it is. It’s really nice to actually talk to Jordan. I don’t get that all that often. [laughs]

JR: We have to stick together.

JS: I know we do. We do. We’re a tribe. 

So let’s just jump right in. How about that? 

JR: Let’s do it. 

JS: When the Dobbs decision came down last term, I’m curious what your reaction was and what it signaled to you about the direction of the court.

JR: Yeah, so it was weird for a number of reasons. But for one thing, we already knew it was coming, because the opinion leaked in May. There was no real reason to doubt that’s what the opinion was going to be. The court all but admitted it in Chief Justice Roberts coming out and proclaiming this was like an act of war on the notion of law and justice itself — the leaking of the opinion, not what they were doing with the opinion.

JS: [laughs] Right.

JR: Nonetheless, though, to me anyway, it did still feel jarring when it came out, when it was actually real. Like, wow, they actually did it. Because we could spend an hour talking about the leak itself, because there was some speculation of what the leak was trying to accomplish by whoever leaked it was doing: Was it liberal trying to get a Republican to change their vote? Was it a further-to-the-right Republican trying to hem in any of the relative middle Republicans, so they wouldn’t have gotten swishy?

So for those reasons, and for every single reason since Roe has been fought against for the last 50 years, I still felt it was jarring when it was actually real, even though we knew it was coming. 

JS: Yeah. 

JR: Last year, there was another revelation of an alleged leak from much longer ago, from the Hobby Lobby decision back in 2014, related to the Obamacare contraception mandate, where the New York Times and others had this really explosive reporting that there was this religious-right campaign to try and infiltrate the court, to bolster the justices, sort of similar to what I said about the right-leaning theory of the potential Dobbs leak to make sure they didn’t go squishy in their weaker moments. And that as part of this campaign of rich donors wining and dining the Republican justices, Alito leaked his Hobby Lobby opinion, not publicly — 

JS: Right. 

JR: — like the Dobbs opinion leaked, but through this wining and dining conservative network that allegedly made its way back to Hobby Lobby itself. And that was through the Rev. Rob Schenck, who became this whistleblower figure. And, again, [we] could talk about him for an hour.

JS: [laughs]

JR: But just to make a long story short, it wasn’t the only leak revelation or alleged leak revelation — not just a leak, but having to do with the abortion issue, too. And so this, again, I think it emphasizes how the abortion issue has been the whole ballgame at the court and in politics for at least the last 50 years. And this all goes to that.

JS: Yeah, absolutely. So now that we have this 6-3 super-conservative supermajority, how does it affect the decisions that the court makes in consequential cases? But also, how does it inform the direction that the court moves each term, if that makes sense?

JR: Sure. So, and the Dobbs opinion is a good example — the perfect example, really — because previously over the last at least a couple decades or so, before we’ve had this most recent iteration, it was Justice O’Connor or a Justice Kennedy who had been that middle seat. I mean, both Republicans, by the way, just to show kind of the relative terms in which we need to even talk about compromise at the court. But there was the possibility — and sometimes it really did happen — that the 5-4 decisions would go the relative-left way as opposed to the relative-right way. 

And then it came to a point where Roberts was in the middle, right? And just given how sort of mind-blowing that is to think about, even looking back to the time of his confirmation, around Alito’s confirmation, which was around the same time too, that that would be the center of the court. But what you have now is that Roberts is on the left of the Roberts Court — as, again, mind-blowing, as that is to think about. 

And the reason that the Dobbs opinion is such a good illustration of that is because you had the five Republican appointees besides Roberts, who joined really the full-throated overturning of Roe v. Wade, and you had Roberts writing this separate opinion, which would have upheld the law — which by the way, would have been certainly a further curtailing of abortion rights. I mean, if that had been the majority of opinion, that would have been significant in its own right, that’s just not where we are right now relatively in talking about the court. But that’s all to say, those other five don’t need Roberts anymore. That’s the bottom line. He could have had a full-throated dissent, and the results would have been the same, potentially. So I think that itself shows exactly where we are. That’s the direction of the court. They don’t need Roberts. Whether it’s his court or not anymore, people can have that sort of debate, however interesting or not that is about the institution. [But] when it comes to the reality of the decisions, there are five Republican votes besides Roberts.

JS: Well, I guess it’s also related to because there’s this 6-3, I mean, it really sort of impacts what cases they’re gonna — I mean can you explain just a little bit about what it takes to get a case accepted? Because obviously, it’s very consequential [laughs] for who gets to decide at this point, right? This majority that we have.

JR: Right. And I’m glad that you asked about that because this is something that there’s no reason for this to be common knowledge for even just a really well-educated news consumer, it takes four votes to grant cert. a case, to get the court to take a case fully up on appeal, hear an argument, have the decision come down, the sort of life of a case that we’re familiar with in a case like Dobbs. And so when there were still at least four Democratic appointees on the court, they could have at least, in theory, voted to hear a case; it wouldn’t have unnecessarily made sense to hear a case, then they wouldn’t have liked the results that a majority would have then reached, them being in dissent, 

But, again, this is in the same category, you can think of it as not needing Roberts. You have the court able to set its agenda in an even more muscular way. Because who knows? Even within both the Republican and the Democratic sides, each justice has their little pet projects, things that are more or less important to them than the other. When it comes to the big ball game, like abortion, guns, things like that, you know where it’s gonna go. But when it comes to figuring out which cases you can get four justices to agree to take, again, that’s more breathing room that the court as a whole has. Obviously, if you’re a justice looking to get a case accepted, you have to be thinking about what the ultimate result is going to be. So there’s only so much sort of gamesmanship you can have there. 

But again, I would look at that as a piece of setting the agenda is at least as powerful as what you can do. Because when you hear a case being talked about, as say, a compromise decision or a narrow decision, that can be true. And again, we could argue all day about how cases are covered and described and all of that. But you’re missing a little bit of the context if you don’t recall that in almost all cases, the court’s docket is almost entirely discretionary. 

And so if I could give one example of a case that’s being argued this term, this case about the so-called independent state legislature theory. And it’s a voting case, described broadly being heralded as the potential end of democracy, right? And the argument revealed what might be described as either a potential narrow ruling, a potential compromise, a potential of not reaching the farthest-right potential theory of that doctrine. But again, whatever decision winds up coming out in that case, it’s going to be important to remember that this was a case that the court decided to take up and it didn’t have to. And so I anyway think it’s important to remember that when you’re heralding any type of, or complimenting, or whatever you’re doing any type of compromise to make something seem potentially more normal or less extreme than it otherwise is, it’s almost manufacturing a normalcy to things. 

Because the court again, only takes so few cases. It used to take a lot more cases of up on argument, almost twice as many, and not that long ago in its history, either. 

So again, you have so few cases, the justices are almost completely within their discretion setting their agenda. And so even in cases where you might look at that and say: Hey! Depending on what one’s view is that could have gone worse or better or whatever — you have to look at the whole life of the thing to see how it got to the court in the first place.

JS: Right, exactly. It’s a very good point. 

I’m just shifting for a minute here: After Dobbs came down last summer, the court’s approval rating just dropped [laughs] to a quite historical low, right? So we had a Gallup poll that found that 40 percent of Americans actually approved of the way SCOTUS was handling his job while 58 [percent] disapproved. 

In October, the Heritage Foundation’s John Malcolm interviewed Justice Samuel Alito, and asked him about the court’s legitimacy. Here’s this clip:

John Malcolm: You recently stated that “saying or implying that the court is becoming an illegitimate institution or questioning our integrity crosses an important line.” 

So how do you respond to those who say the court has become a nakedly partisan institution and what is the danger of crossing that line?

Justice Samuel Alito: Oh, everybody in this country is free to disagree with our decisions. There is no question about that. Everybody’s free to criticize our reasoning and to do [so] in strong terms. And that certainly is done — in the media, and in the writings of law professors, and on social media, and in other fora… There is no question about that. 

But to say that the court is exhibiting a lack of integrity is something quite different. That goes to character. It goes not to agreement or disagreement with the reasoning, it goes to character. And someone also crosses an important line when they say that the court is acting in a way that is illegitimate. I do not think anybody in a position of authority should make that claim lightly. That is not just ordinary criticism. That is something very different. 

JS: And then, Chief Justice John Roberts has also commented on questioning the legitimacy of the court.

Chief Justice John Roberts: I don’t understand the connection between opinions that people disagree with and the legitimacy of the court. 

JS: [laughs] OK. So what do you make of the justices’ views that the legitimacy of the Supreme Court should basically go unquestioned?

JR: Yeah…

JS: [laughs]

JR: I feel like those comments almost speak for themselves in their ridiculousness. I mean — no, but really, it’s not that it’s surprising. But I mean, these are smart people, right? Like, these are not dumb people, whatever else there is to say about anybody who sits on the Supreme Court. And could you even imagine that about any other branch of government? I mean, at the end of the day, we’re talking about power here, right? And so it’s our rulers telling us how we’re allowed to react to how we’re being ruled. Right?

JS: [laughs] Right.

JR: And I mean, that’s really the beginning and the end of it. And so what it’s doing, I think, maybe they do have some great counter-argument that they just don’t want to deploy for whatever reason, or maybe it’s a sign that there isn’t an argument. And so therefore, the argument is: We can’t argue and I’m setting the terms of this debate. 

Again, it is a sort of agenda-setting here in the public sphere, though. And so when they’re in the public sphere, and when they are outside, rather, sort of the four corners of their writing, they can seem even less persuasive when they’re kind of trying to convince a regular person about an argument because it just doesn’t make sense. And this isn’t even, I don’t think, a Republican or Democratic thing. This is just, I think, a general commentary about how the law is created and how power is wielded is: Do we look to our elected leaders, the judges who are indirectly, at least, elected, and look to them for how we’re allowed to criticize them? I mean, I just think that to describe that situation is to show how incorrect that argument is. 

And again, people are free to fall on whatever side of the merits or lack of merits of whatever opinion they want, but to say that you can’t talk about it, I mean, I think that shows a lack of confidence in one’s work. It’s being upset. It’s kind of sore winning in a way, which I think was the theme of probably, Justice Alito, in particular, speeches. And there we saw a little bit, to a lesser degree, of Chief Justice Roberts, who doesn’t really go as far out there as Justice Alito, but for Chief Justice Roberts to say that he doesn’t understand the argument, I think that’s just not true. Because he’s one of our smartest lawyers in some respects, or he’s at least smart enough to not be telling the truth when he says he doesn’t understand something that’s very simple. And if he doesn’t understand that, then that’s a problem. I don’t know what to tell you.

JS: I totally agree. I like your point, too, because it does go back to what you’re saying: It’s like an agenda-setting, telling us we can’t criticize them, while meanwhile, they’re fully stocking the court because they have that power and are able to take these things, which is a very good point. So when you think about: Oh, that was a compromise ruling? Well, it’s like: Well, no, they didn’t have to take it in the first place! 

So to me, it feels like all part of a piece, right? Like, we’re gonna take this and just blow up this docket with these crazy cases, and we’re gonna do some damage. But don’t you dare say that we’re doing damage — where they’re the ones like fully in control of what they’re doing. And then acting like it’s not fair to criticize them on the back end? I just think it’s kind of ridiculous.

JR: Yeah, I mean, it’s objectively unpersuasive, really. 

JS: [laughs] 

JR: And again, look, someone could listen to this and think that I have a certain view and say, therefore, my view about that is subjective in some way. But I really think that no matter who is speaking, when you’re talking about one of the most powerful people in the country, it is just not persuasive to look to them to dictate the terms of public debate. That’s where I land on that. 

JS: Obviously, we’re not going to be able to cover all the court cases this term in this mini-series, and we’re not even going to be able to get to all of the particularly notable or consequential cases. 

So I wanted to ask you about a few of the cases that we aren’t going to be able to get to, starting with the two affirmative action cases, Students for Fair Admissions, Inc. v. University of North Carolina, and Students for Fair Admissions, Inc. v. President & Fellows of Harvard College. Can you break down those cases and tell us where we’re at and what the consequences might be?

JR: Sure, it’s fairly simple, which is that the right has been fighting against affirmative action for decades, not super dissimilarly from the Roe discussion we were having. 

If you go back to 2003, there was a ruling that kept affirmative action in place sort of for now. Justice O’Connor, again, then, going back to sort of the swing voice that was there that is no longer there, at least not in those relative terms, said she doesn’t expect affirmative action to be necessary 25 years from now — I’m paraphrasing what she said. Again, lawyers are not known as math experts, but we’re not quite yet there. 

And again, we see here with the newly constructed court, setting its agenda to take up cases for the purpose of quite possibly overruling affirmative action once and for all. And so that’s really the gist of it. And the argument suggested that that’s the way it’s going to go — at the very least, it’s going to be further weakened. Again, sort of similar to the abortion issue in that, coming out of the argument, there’s no question of what the interests are at play; there’s very little debate as to which side is going to win, maybe there’ll be a question as to what the exact words are going to be, but it’s really as simple as interest groups that have been litigating against affirmative action, they have a court that appears prepared to finally take it down, and they just needed to find a case to bring. They’re multiple cases here, and we’re talking about Harvard and UNC that deal with different parts of it, because there’s a private-public distinction. But again, the bottom line is just we’re talking about the use of affirmative action in higher education. And it’s something that the Roberts Court has been skeptical of. 

And again, going back to the discussion about Chief Justice Roberts, who in some ways has been relatively on the left of its court, the race issue is something that he has been firmly almost as far right as you could be when it comes to this issue. It’s something that he has been passionate about. And it’s a theme that we’ve seen in multiple cases this term, this notion of the Constitution being colorblind, whether you’re just not allowed to take race into account. And so that’s, in some ways, the theme of the Roberts Court, or one of them anyway, is in pushing forward this colorblind version of the Constitution and the affirmative action cases are just one of the cases that we see that notion at play this term. And there are others, too.

JS: Except for, I mean, the Constitution by nature is not colorblind. [laughs] Look at the Reconstruction amendments. I mean, don’t they speak directly to race, right? That we come out of the Civil War, and how do we get the 14th Amendment if you’re not saying it’s race-conscious? 

JR: And Justice Jackson brought that point up at oral argument. And it’s been described by some after she did it as sort of liberal originalism — using the tools of the right against them, sort of thing. I don’t know whether it’s originalism or just looking at what the text of the amendment says, and just taking the reality into account. But she has been at the forefront of speaking against this colorblind notion of the Constitution across multiple cases this term, not just in the affirmative action case. But she brings up almost the exact point that you do about Reconstruction, and it was done for this purpose. You can’t talk about these issues without talking about the history of slavery in this country, but in the way that on the right, you don’t want to talk about that in the political sphere, we see that same manifestation in the court, too. And so that view is being laundered through this notion of a colorblind Constitution. And we see that in the Supreme Court cases, that political idea of being ignorant to history as well. 

JS: Yeah.

They’ve already heard a voting rights case as well, the Merrill v. Milligan. What can you tell us about Merrill v. Milligan Court case again?

JR: Right, so we’re on the same theme here, again.

JS: [laughs] Yep.

JR: We’re talking about the Voting Rights Act, which arguably a previous case was one of, if not the most significant opinions from the Roberts Court, which is in the Shelby County case, which in 2013, I believe, struck down a previous part of the Voting Rights Act. And that was Chief Justice Roberts writing that decision, and so he has been at the forefront of that idea, even when he was a young lawyer in the Reagan era, this was a cause that was dear to him. And so he has been able to accomplish that now that he’s on the court. 

And so to make a long story short, you had part of the Voting Rights Act go down in Shelby County. 

And now we have another piece of that that is bolstering up what’s left, in a sense, of the Voting Rights Act, or at least another piece of it. And that’s again in danger as well. So it’s the court further chipping away at the Voting Rights Act — again, against the backdrop of this notion of a colorblind Constitution, that race should or shouldn’t be taken into account where you’re drawing legislative districts and that sort of thing. 

But that’s the general idea, basically: Voting Rights Act further in danger again, this term. That’s the tagline I think, from that case,

JS: Yeah. This is kind of how dorky I am. I literally remember where I was the day that Shelby County came down, and I was just, I lived in Texas — I lived in Texas for a long time — and I thought: Oh, no. 

Because what was at issue in Shelby County was the pre-clearance, right? Where a number of states had to basically get their voting changes pre-approved by the federal government because, I don’t know, spoiler alert, they had a giant racist history, right? Predominantly states in the South, but I don’t think it was exclusively, was it? But I think it’s predominantly southern states. 

So when that went, I just remember thinking: Oh, God — because the Texas Legislature, they just been for years trying to get rid of one person, one vote. And, it just was like, ugh. That’s why I remember it. 

And that’s why here, that was such a crucial piece of the Voting Rights Act.

JR: So the Shelby County case was Section 5 of the Voting Rights Act and the Merrill v. Milligan case, this is Section 2 of the Voting Rights Act, which is barring election practices that result in a denial or abridgment of the right to vote based on race. 

So that’s baked into the issue. Again, race here, and so whether the court has to take that into account. And so you see in Alabama, that would have made a difference in the number of districts where that would have been at issue and so the court wants to take a colorblind notion when looking at that, which will, coincidentally or not, result in districts that are more in Republicans favor.

JS: OK, so I want to open up a little bit further and just say two things — two-parter! 

I’m curious about what cases you are keeping an eye on this term. But also, you made a comment to my colleague, Liliana Segura, when y’all were both at the Supreme Court back in October, that I definitely want to know the answer to: You were saying that there’s some very interesting cases that they’ve taken, but what’s also really interesting are the ones they haven’t taken. 

So I’m curious, which cases are you keeping an eye on? And also, what do you see in the ones that they haven’t taken?

JR: Yeah, so I think that’s a subset of what I said before in terms of the court, one, setting its agenda, and two, taking relatively so few cases. 

I mean, just by way of some background, a typical reason that the court will take up a case is when there’s what’s called a circuit split, or there’s a disagreement among the appeals courts around the country. Again, it doesn’t necessarily have to be in what someone might think of as a political case if you can hold the idea that there’s some sort of law outside politics. I’m not really going to attempt to convince anyone — 

JS: [laughs]

JR: — one way or the other about that. But relatively within that, you know what I mean. If it’s, this circuit says this word means red; another circuit says it means yellow; it’s up to the Supreme Court to sort out, because the idea is that you want uniform application of law throughout the country. 

I mean, there are tons of cases like that, including quite often in the criminal sphere, people who don’t necessarily have well-heeled lawyers, and not to say that criminal cases from indigent people don’t attract that sort of support and make their way up to the court with relative — almost surprising — frequency, given that there is that sort of lack of constituency, but there is just a lot that gets left on the table. 

I mean, just one petition that’s pending that’s sort of interesting to me is this issue called acquitted conduct, which is this really wild situation where — and this is something you tell to someone on the street, and they just wouldn’t believe you that this is a thing — where even if you’re acquitted of certain conduct at trial, it can still be used against you by the judge at sentencing. They can still take it into account. Which, again, you think that you’re acquitted, that means you go home, right? And I mean, that’s true if you’re acquitted of everything, but in a situation where, as is often the case, there are multiple charges at play, you get convicted of one of two crimes, the judge can then take into account the conduct underlying that second crime that you weren’t convicted of in fashioning your sentence. And so it’s as crazy as it sounds — acquitted conduct. 

And so the court is considering a petition on this. And it’s the sort of thing where you would take a look at it and say: How could something like this stand? And it’s happened for long enough, and so it’s not the sort of thing that’s guaranteed for the court to take up. That’s the sort of issue that, again, the court isn’t necessarily going to take, maybe it will, maybe it won’t, it wouldn’t shock me either way, however shocking the underlying issue is, but there are all sorts of even really less shocking issues, that would just be, frankly, not even that interesting to talk about, but that are just important to the functioning of law, that the court often does not take, despite the existence of a clear circuit split. And again, will use its — by choice — limited resources to engage in what might be termed more of these culture-war types of cases that don’t even really produce that significant of a ruling from a legal perspective. 

Like, in the Masterpiece Cakeshop case, which is kind of a precursor to the same-sex wedding website case that’s at issue this term. I mean, you go back to that, and they had just another one of these sort of very narrow rulings that were tailored to the facts of the case that only — the point of a Supreme Court ruling, in theory anyway, is to provide guidance to the people and courts around the country for how to interpret the law. Ideally, at least in theory, and in reality, I would say they don’t really care about the specific facts of the case, or at least, they don’t have to. The point is to try and work out some sort of legal principle. And so again, they’re taking these cases that have these hot-button issues to them, which don’t necessarily produce significant rulings at the expense of leaving the sort of workaday type of issues on the table. Again, they could do both. They choose not to. They could take the more important issues and not take the more hot-button type cases, especially ones that don’t produce any real significant ruling to them, but that’s how they’ve chosen to operate.

JS: So obviously, they’ve already heard oral arguments on a number of cases, but we don’t have any decisions yet. So how does that kind of compare to past terms? And what do you make of that, if anything?

JR: Yeah, so it’s frankly a little weird that there haven’t been any decisions yet, at least just looking at it in terms of the cold numbers, as far as we’re at this point in the term and don’t have any decisions yet. 

Again, we’re talking about this in the context of hearing relatively fewer cases. But even within all of that, we would have expected to have at least some decisions this term. 

Now, there could be a couple of things going on. We usually have the hottest cases coming down at the end of the term, right? If you think about the end of June, for your entire thinking life, it was probably marked by the Supreme Court telling us how some subset or all of us are allowed to live or not, in some respect, right? Those come down later in the term because they take longer to cook. There are dissents going back and forth. There are justices trying to cajole one another to join this or that opinion. But so that means that in theory, anyway, the easier opinions are coming out earlier in the term, the ones that are unanimous. 

And going back to kind of the court’s publicity campaign and the remarks that we saw earlier, we’ll see in some of those same speeches, someone like Chief Justice Roberts pointing out in his criticism of the media, and how we only talk about the 5-4 cases that oh, if you actually were to look at what we’re doing, we’re unanimous most of the time. And it’s just in these 5-4 cases that the media likes to glob on to.

Now leaving to the side that we’re interested in them, because they’re, frankly, more important, and that’s why the justices are disagreeing with them, the fact that we don’t even have those unanimous opinions yet this term suggests that the court’s just not having an easy time, whether that’s a function of it still being not a great environment after the Dobbs leak, and whatever else has been happening at the court. There certainly have been a significant amount of significant cases, relatively, that have been argued already this term. So that could be part of it, too, it’s sort of a fairly front-loaded term, in terms of them having argued a bunch of significant cases already. But still, you have to think there could have at least been something that’s come out. 

And so it’s like: What are they doing? Has the Chief Justice tasked them all to investigate the league? Are they busy doing stuff with that? 

I don’t know. But it’s really not clear. You would think they would have come out with something, especially given how apparently sensitive they are about public opinion, however much they say they aren’t or how we’re allowed to talk about it. Just break us off a unanimous opinion that no one cares about, and then you can have that stat for yourself. But they’re losing even that talking point in not doing that yet, sort of proving the point that this all is contentious because they’re all just sort of making this stuff up. And that’s a function of when you’re filling the docket, too, with all these kinds of pet projects, you’re going to be left with perhaps fewer of these unanimous cases that give you that talking point of: Everything’s usually all good, it’s just in these handful of cases that you in the media like to make a big deal about.

JS: It’s a really great point. 

You’ve talked about this a little bit, but I want to let you go wherever you want to go with it, is about Ketanji Brown Jackson. And you’ve written about how Justice Jackson is challenging right-wing legal claims. We talked about this a little bit. But I would just like to throw it back to you to say: What sort of imprint do you think she’s had on the court so far?

JR: Yeah, sure. So we got to start with kind of the cold, boring math of it —

JS: [laughs]

JR: — just to make clear what we’re talking about before anyone gets too excited or not. 

She’s replacing Stephen Breyer, who was also a Democratic appointee. So it’s a one-for-one trade. It’s not one of these switches like Barrett for Ginsberg that alters the course of the court. So, again, there’s no real change there as far as the direction of the court. I mean, you have to note the significance of the first Black woman justice; again, that doesn’t change anything about the math. So that’s something you have to keep in mind if you’re tracking the result at the end of the day. 

I do think, though, when you look at something like oral argument, which is how the court sometimes is only interacting with the public; sometimes some members of the public’s only interaction with the court is hearing them speak, to hear her bring up some of these issues, for example, like combating the notion of a colorblind Constitution, it’s maybe possible that Justice Breyer would have said something like that — and I’m quite confident that he would have landed probably on the same result as her — but you just can’t pretend that it has the same significance even if they are saying the same words, which they’re not, in having Justice Jackson being the one saying that. 

And so I don’t think that they’re going to be ideological opposites by any stretch, they might wind up being quite similar, but we’ve already seen her have an impact, I think, on how the oral arguments are going, which again, lawyers at Supreme Court will tell you, that is not a significant aspect of the case, it’s mostly done in the briefing. But with the public paying this much attention to the court now, perhaps more than ever before in recent memory, it’s significant that she is out there, bringing up that view, when sometimes maybe other justices won’t.

JS: When you go to the court, it’s just all so formalized. And it’s all of this sort of tradition, and it’s sort of steeped in these fancy curtains, and everything’s just sort of gilded or whatever. And it’s meant to inspire this sort of reverence, right? 

But I don’t know that I — I just don’t know that I believe in it anymore. Just the way that the court is now taking these cases, and some of the hypotheticals that they’ve used, for example, I just sometimes feel like they’re sort of arguing just to hear their point and they just know where they want to go, right? That there’s some very results-oriented judging going on here. 

And it makes me wonder: Why — and Lili and I talk about this all the time — why have we spent all these years trying to understand the law? Why have we invested so much time in the rule of law, and trying to understand it, when it sometimes feels like it doesn’t matter anymore? 

And I’m just curious, if, from the first time you sort of stepped into that court and come through now, and the way that kind of things have played out over the last number of years, do you look at that a different way? Or do you feel a different way about the whole sort of mythos of the Supreme Court? 

That’s like my omnibus question. So take whatever piece of it you want and ignore the rest.

JR: Yeah, I mean, personally, I don’t look at it differently. Because I think I always viewed it in the same way of law being just an exercise of power, just by different means. I think what we’ve seen in recent years is an extreme version of that. And so the court is now kind of like the dog who caught the car. And that’s why they’re mad that people are mad at them. 

And so to answer the question of why, though, to keep doing it, I mean, it’s because of that power question. You don’t have to take it seriously. It’s like the Trump thing; it’s like, literally, but not seriously, or whatever that is. But I mean, you have to cover it for the same reason that you have to cover politicians and the president and everything else. And so you don’t have to respect it. You don’t have to bow or curtsy —

JS: Although I think Alito really would prefer it if you’d do that. [laughs]

JR: I mean — you could show the guy some respect, if I may say.

JS: OK, I’ll give that a shot.

JR: But he wanted me to mention that to you, specifically. 

JS: [laughs] OK. Thank you. 

JR: But again, to me anyway, it comes down to power. And so the reason that that has maybe been expressed less loudly is just because of the composition of the court. And where we started in recent decades, anyway, it’s all because of Roe. That’s why Supreme Court confirmations have been contentious in recent decades; that’s how we got the court that we got. So it’s sort of come full circle now. And it’s like, we’re standing at the party, and it’s over, and the lights are on, and it’s sort of awkward. It’s like: What do you do now? Right?

JS: Yeah. 

Well, then my last sort of question that actually follows on to that. Which is that we watch the courts quite closely. And I want to know what you would say to people who might be listening who are actually really concerned about the direction and what lies ahead.

JR: It’s too late. That’s what I would say.

JS: [laughs]

JR: No, really. That’s what I would say. If you’re concerned where the court is, then I would say barring adding seats to the court, it’s too late. And so if you don’t like the direction that the court is in, then you should be in a position of trying to change the composition of the court. And if you’re interested in doing that in a way to have any impact and not just waiting for people to die, or the winds to shift of whoever is or isn’t in Congress, then that’s the step that you would want to take. If you like how things are, then you want to try and do whatever you can to cement the status quo. But you know, when you talk about the big decisions, I mean, that cake is sort of already baked. 

One other thing I would say too, though, is in our federal system, there are the state courts, too — these things that the independent state legislature proponents don’t really want to tangle with. And so what we have seen is some of the state courts kind of flexing more of their muscles — or maybe they were always flexing them, but now is the only time that we’re putting a spotlight on them on the stage. And so I think what we’ve seen is maybe some litigators, who perhaps in the past would have fought to get a case to the Supreme Court are now focusing maybe more on the state courts, whether it’s for abortion or any other issue, really. 

And so, as far as the Supreme Court, you have to look no further than the political process to see how that does or doesn’t move. And I’ll leave that to anyone listening, whatever they want to do with that information. But I think there’s sort of more play in the joints, from a litigation standpoint anyway, in the state courts. And so that’s where the ballgame has moved to, in some respects. Not completely, because the Supreme Court is still there, but that’s maybe one thing to check out that might not be on someone’s mind, who’s still an otherwise educated consumer of what’s going on. 

Just to add kind of one nerdy point to it, which is that if a state court is handing down a ruling based on its state constitution, then that’s not something that the Supreme Court could then reverse, because if you’re thinking — oh, what’s the point anyway, if they could just reverse it — that’s why you see some decisions it’s important on what grounds the state court is ruling. 

So that’s why I think we’ve seen some people focus their attention either instead, or additionally, towards the states, instead of putting any hope in the U.S. Supreme Court.

JS: That’s a really good point. And especially with post-Dobbs, I’ve been thinking about that, and I’ve written about that some, it’s that you have to look at the state constitutions. And I think it’s always good to remember in that context, that the U.S. Constitution is the floor, not the ceiling. So it sets the base level at which you have to protect your people, but a lot of these constitutions go far beyond what you see in the U.S. Constitution. So I think that’s a really, really nice, good point. [laughs]

JR: Maybe a hopeful point.

JS: Yeah, I like that. You gotta take it where you can, right?

JR: Exactly. 

JS: Jordan, thank you so much for joining us. This has been wonderful, and I really appreciate it.

JR: Thank you. It was fun.

JS: That was Jordan Rubin, a legal analyst and opinion writer for MSNBC. 

[End credits music.]

JS: And that’s it for this episode of Dissent, a production of The Intercept. 

This episode was produced by Laura Flynn and Jose Olivares. Roger Hodge is editor-in-chief of The Intercept. And Rick Kwan mixed our show. 

If you’d like to support our work, go to theintercept.com/join — your donation, no matter what the amount, makes a real difference.

If you want to give us feedback, email us at podcasts@theintercept.com. Thanks so much.

Until next time, I’m Jordan Smith.

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