David Morris:
Welcome, and thank you for joining us. Good evening, good afternoon, good morning to more than, I think 500 Brandeis alumni, parents, Brandeis National Committee members, and friends who are registered here for this event, so across many geographies and time zones.
David Morris:
My names is David Morris, a member of Brandeis Class of '96 and Chair of the Brandeis Alumni Lawyer's Network. Before I introduce our speaker I want to share a quick announcement and some logistical details for this Zoom meeting. First, there's a lot of exciting virtual events taking place throughout the fall from Brandeis. If I were listing all of them, that would be an event unto itself, so I'm not going to go and do that right here, but check your email for reminders of the virtual events, e-newsletter and on social media.
David Morris:
This event, like most of our other virtual programs, is being recorded and will be viewed again through the virtual event library on the Brandeis website. It should probably be up in about a week after this. There are more than 30 past programs from recent months already in that virtual library for you, with faculty speakers, alumni and much more.
David Morris:
There will be a Q&A following Professor Breen's remarks. If you'd like to ask a question please use the Q&A function on the bottom of your Zoom screen.
David Morris:
And now, to introduce our speaker, Dan Breen is a lecturer in the legal studies program at Brandeis. He's been teaching since 1998 at the university, and one of his courses is Louis Brandeis, Law, Business and Politics. He also teaches the legal boundaries of public and private life, civil liberties in America, business law and science on trial. In 2017, he won the Louis Dembitz Brandeis Award for Excellence in Teaching, which honors an individual for outstanding teaching. We are thrilled that he's able to join us here in this virtual space and look forward to learning from him tonight. Welcome Professor Breen, thank you.
Dan Breen:
Well thank you, and it is wonderful to virtually see all of you this evening. Here I am, broadcasting live from the regal splendor of 324 Brown Hall at the Brandeis University campus. It's wonderful to be back. If there are students among you, I hope to be seeing you before too long.
Dan Breen:
Let me see if I can share my screen, and we'll get started right away with our presentation tonight on recent cases from the Supreme Court. This has been one of the most interesting terms in recent Supreme Court history, and I've got six or seven cases to talk about, not all of which were on the list that many of you got, but a lot of them are. There'll be a couple additions, and I hope you'll find those additions interesting.
Dan Breen:
Well, let's begin with the words of Chancellor James Kent of Dutchess County New York, who in 1794 became the very first law professor at Columbia University Law School. In that year of 1795, he had to give his introductory lecture in law, and he chose to talk about the prospects, the potential of American democracy, there in the early days of our constitutional system. And what he said was that the problem with American democracy was that if the majority party in power in the government were to do something really bad, they're more than likely to get away with it because members of that party out in the country will probably approve whatever it is, just because it's their same party doing whatever bad thing that was.
Dan Breen:
According to James Kent, the problem with a multiparty democracy is that people will always make excuses for the government when their liberties, or liberties in general are trampled on, as long as it is their own party doing the trampling. And thus, in the end, liberty will die.
Dan Breen:
The only thing James Kent said that could prevent this from happening, is a strong, independent judiciary, free from what he called the baneful influence of faction, "Free from that baneful influence." Said James Kent, "The judiciary can give the United States what it really needs, a sustained, firm and impartial interpretation of the law, declaring unconstitutional acts void, and in doing so keeping the political branches within their duty." And that's his famous phrase. What the judiciary has to do is keep the political branches within their duty. It behooves us to ask, in this troubled summer of 2020, how well has the Supreme Court deployed in the past term, its power of judicial review to hold Congress and the President within their duty.
Dan Breen:
And I'd like to begin by noting what all of us already know, and that is that nobody would say that federal judges, or judges in general, are free wholly from the baneful influence of faction. They have their points of view, they have their ideologies like the rest of us do, but the interesting fact is, and I think people forget this, that many Supreme Court decisions, even on this divided court that we have now, are indeed unanimous, or they're eight-to-one, or they're seven-to-two. And as a matter of fact, in the last term we've just had 40 out of the 61 opinions were either unanimous, or they were eight-to-one, or they were seven-to-two.
Dan Breen:
Ruth Bader Ginsburg, one of the great progressives on the court, agreed with Justice Alito the conservative, 51% of the time in the last term, and in fact she agreed with Justice Gorsuch, another conservative, 62% of the time.
Dan Breen:
And among the unanimous decisions that I want to talk about today, one of them involved this, the busiest vehicular bridge in the world, of course the George Washington Bridge connecting Fort Lee in New Jersey with 178th Street in Manhattan with its 14 lanes of traffic. The George Washington Bridge is really important for a lot reasons. It actually made possible the growth of the American trucking industry in the middle of the 20th century, but we're talking about it because it's this bridge that gave rise to the case of United States versus Kelly. What we are concerned about are the events of the first day of school in September of 2013.
Dan Breen:
Angry at Mayor Sokolich of Fort Lee, New Jersey, for refusing to support New Jersey Governor Chris Christie in his reelection bid, members of Governor Christie's staff, including Deputy Chief of Staff Bridget Kelly, conspired with high level Port Authority officials to close two of the three lanes leading from Fort Lee to the toll booths at the entrance of the George Washington Bridge. "Time for some traffic problems in Fort Lee." Bridget Kelly had famously said in a highly incriminating email a few weeks before this happened.
Dan Breen:
The result of this decision, arbitrarily essentially to punish Mayor Sokolich, was horrible traffic congestion on the roads leading into the George Washington Bridge from Fort Lee. Several days of horrifying gridlock gripped the city, all by way of punishing Mayor Sokolich.
Dan Breen:
Kelly and her co-conspirators, especially those at the Port Authority, later concocted a lie to cover up their intentions, claiming it was all part of a Port Authority, quote, "Traffic study." Unquote. Now, by any rational standard, this was a despicable thing to do, especially since among the vehicles caught in that traffic, that epic traffic leading from Fort Lee to the George Washington Bridge, was an ambulance responding to a heart attack call. But the question is, did this decision to violate federal law ... Now, the Justice Department, the US Attorney in New Jersey thought it violated 18 U.S.C. section 1,343, and that is the Wire Fraud Statute, which it makes it a crime to use the instrumentalities of interstate commerce like email, phones, things like that, in order to engage in any scheme to obtain money or property by false pretenses.
Dan Breen:
Now, Bridget Kelly and her co-conspirators certainly used email, so that's part of the Wire Fraud Statute was certainly abided by. However, as Justice Kagan points out in her opinion on behalf of a unanimous Supreme Court, the point of the plan was never to obtain money or property, the point of the plan was to punish the democratic mayor of Fort Lee for his temerity in supporting somebody of the opposite party for, not supporting that person, Governor Christie, for the governorship of New York.
Dan Breen:
Now, the Justice Department tried to claim that Kelly and her co-conspirators did cause property loss, in that with only one toll booth open, the Port Authority had to hire a backup person at the toll booth, in case the one who was already there had to go to the bathroom, and that person had to be paid, so maybe that's a loss of property. But the point is, as Justice Kagan points out, that these conspirators did not engineer this fraud for the purpose of making the Port Authority lose money. The purpose was not economic, the purpose was political, according to Justice Kagan. If you allow the Justice Department to use the Wire Fraud Statute in the way it wants to use it in this case, you'd be setting up Washington as the general arbiter for good government all over the country, binding on the states. According to the Supreme Court, Kelly properly lost her job over this, but she does not need to go to federal prison.
Dan Breen:
Now this decision, and others before it, certainly limits the ability of federal authorities to attack public corruption in the states, and for that reason it has some opponents, but it's a good example of the nature of a judicial in our system of balanced government. The Executive Branch enforces the law, and in doing so they cannot go beyond what the words of the statute clearly entitles them to do.
Dan Breen:
One thing the federal courts must do, as we just say with Chancellor Kent, is hold the Executive Branch within its duty. And one way to do that is to hold the Executive Branch within the actual words of the statute. What does the law actually allow them to do? The point is that wife fraud does not exist in the air, it has a definition, and a part of that definition is that a defendant is only guilty if the point of the scheme is to obtain property, then it is a considerable stretch to bring Kelly and her co-conspirators within those words. US versus Kelly, as I just said, was a unanimous decision based upon what happened in Fort Lee back in 2013.
Dan Breen:
Now, here's your first quiz of the evening, and if you know the answer, or you have a theory, put your answer in the question and answer part of our Zoom presentation tonight. What on earth is this dog doing after a discussion of Fort Lee and New Jersey? So chew on that for a little while and I'll tell you the answer at the end.
Dan Breen:
Now we have to move on to our next case, and that's Ramos versus Louisiana. And for our purposes of this case, let me introduce you to this remarkable man here, that is Calvin Duncan. Calvin Duncan served 28 years at Louisiana's notorious Angola Prison for a crime he did not commit. The state authorities withheld evidence that would have excluded him as a defendant, they didn't share that evidence, and so he went to Angola, the largest maximum-security prison in the country, known as the Alcatraz of the South.
Dan Breen:
Calvin Duncan never got beyond the 10th grade, but he seems to have had, and he still has, a first-class legal mind, because shortly after arriving at Angola, he began to counsel fellow prisoners on how to prosecute their appeals and their habeas corpus petitions. And he soon became an extremely effective jailhouse lawyer, recognized as such but the State of Louisiana who would pay him $0.20 an hour for performing this service for fellow prisoners, advising them on their cases.
Dan Breen:
And one thing Calvin Duncan, during his many years at Angola, could never quite understand, was why would it be that the State of Louisiana almost unknown in the union, allowed criminal convictions on the basis of non-unanimous verdicts. In the rest of the country, if you're accused of a felony you don't go to jail unless it's 12 to nothing against you. But in Louisiana it could be 11-to-one, or it could be 10-to-two. Well, Duncan wondered why this was, and he kept complaining about it, but he did a lot of research with whatever sources he could find at the Angola library, and he found that there was a reason why Louisiana allowed non-unanimous verdicts in felony cases, because all the way back in 1880, the Supreme Court had said that under the 14th Amendment, equal protection, it is unconstitutional for a state to exclude people from juries on account of race. Juries had to be open to black men as well as white men, the way they did things in 1880.
Dan Breen:
When Louisiana decided to revise its constitution a few years later, a project specifically dedicated, according to the state, to establishing the supremacy of the white race. Louisiana provided, in its new constitution, for non-unanimous juries. That way, even if one or two black men might be on the jury, the white majority could always outvote them 11-to-one, or 10-to-two, and that's why that provision was there.
Dan Breen:
For years, as I said, in case after case, where people at Angola were there because of non-unanimous jury verdicts, Duncan would try to challenge this. He'd advise them how to challenge this, and he was never successful until this past year when the Supreme Court ruled, in the case of Evangelisto Ramos, that the Sixth Amendment of the Constitution forbids convictions by a non-unanimous jury, six-to-three case, with an interesting ideological lineup. Justice Sotomayor was in the majority, as well as Justice Thomas. They were all in that six Justice block majority.
Dan Breen:
There are many interesting facets to this case. I'll just talk about two of them. One of them is that the case tells us, and reminds us of a theme we'll be seeing again tonight, that history really matters in determining how to interpret the Constitution, and in some cases statutes as well. It mattered to Justice Gorsuch that this non-unanimous jury system had frankly racist origins. And not just in Louisiana, but also in the only other state that allowed non-unanimous juries, and that is Oregon, where when the Ku Klux Klan helped to run the state, that provision was passed into law allowing non-unanimous juries. It mattered to Gorsuch that that was true, this racist motivation, just as Gorsuch reminds us, stands in stark contrast to the proud tradition of Anglo-American law, going back to the 14th century that favors unanimous juries as a part of due process of law.
Dan Breen:
This racist motivation may not be completely dispositive of the case, but Justice Gorsuch says it should play a role in our thinking, rendering this unconstitutional. And while Louisiana might say that the cost of the unanimous jury, the cost of demanding unanimous jury, outweigh its benefits. That does not matter according to Justice Gorsuch who wrote the opinion. He tells us that when the American people chose to enshrine the right to an impartial jury in the Constitution, they weren't suggesting fruitful topics for future cost-benefit analysis. That's one interesting about the case.
Dan Breen:
The other interesting thing about the case is that in concurring with the result, just as Kavanaugh decided to write his own opinion, based upon the fact that to achieve this result the Supreme Court had to overturn a 1972 precedent that did, apparently, allow for non-unanimous juries. Justice Kavanaugh asks in his concurrence, "Under what circumstances should the Supreme Court overrule a prior precedent?" Just as they were doing in the Ramos case.
Dan Breen:
In his reading of prior cases, his knowledge of the Supreme Court tradition, allowed Justice Kavanaugh to distill three principles here. These are the three things the Supreme Court should ask in deciding whether to overturn a precedent. And the significance of this is that if Justice Kavanaugh in overturning Roe versus Wade, as a lot of people think he might be, he's going to have to justify that decision on the basis of his determination of what permits, or should encourage, the Supreme Court to overturn a precedent.
Dan Breen:
Now, I don't know, but I would say that Justice Kavanaugh is likely to think that the reasoning in Roe versus Wade was egregiously wrong. He probably thinks that. And the second thing is, I think he might say, and this is Justice Kavanaugh talking of course, that Roe versus Wade has had poor political results, in that it has badly affected our political process. I think he would probably say that.
Dan Breen:
But what would he say about number three? Has there been social reliance on Roe versus Wade? Have people relied so much on the abortion right that it would be wrong to overturn that precedent? And I'm not sure how he would square this part of his analysis to a decision to overturn Roe versus Wade. According to Justice Kavanaugh, I think all three of these conditions have to be there, before a precedent should really be overruled. And the reason I think this might be though for anybody, and for Justice Kavanaugh as well, is that a very good case can be made that millions of people, women, have relied on the abortion right. And Justice O'Connor actually said that almost 30 years ago, in her famous opinion in Casey versus Planned Parenthood.
Dan Breen:
This is what Justice O'Connor said, "For two decades people have organized intimate relationships and made choices that defined their view of themselves and their places in society, in reliance on the availability of abortion if contraception should fail. The ability of women to participate equally in the social and political life of the nation has been facilitated by their ability to control their reproductive lives." That is really reliance language, and I'm just not sure how Justice Kavanaugh will easily get around that. But stay tuned, because we may be faced with such a case in the future.
Dan Breen:
Now, while we're on the topic of abortion rights, one of the most important cases from the last term, just about six weeks ago this came out, was the June Medical Services case. And in that case, Chief Justice Roberts joined the majority in striking down a Louisiana law that if enforced would have essentially gotten rid of all abortion clinics in Louisiana, except maybe one. Now, that's the position referral law that a lot of you have probably read about. And Chief Justice Roberts joined this decision, a five-to-four decision, even though he's a conservative, because the Louisiana law at stake in this case was virtually identical to a Texas law the Supreme Court struck down as a violation of Casey and Roe in 2016. Based upon the need to preserve precedent Chief Justice Roberts joined the majority, in this case, even though he was among the dissenters in the Texas case from 2016. And Chief Justice Roberts has been widely celebrated for this, because he has upheld the institutional integrity of the court as a body with some reckoning and allegiance to precedent in the rule of law, despite what may be his own personal predilections about this issue.
Dan Breen:
But it's very important to point out that in his concurring opinion, joining the five-justice majority, a slim majority, Chief Justice Roberts said that in undertaking the analysis under Casey in deciding whether any particular abortion restriction constitutes an undue burden on the women's right to choose, it is inappropriate to do what the other four justices did, and inquire into the question of whether there are any medical benefits at all in that abortion law in the state. The majority in June Medical Services pointed out that this Louisiana statute had no possible medical benefits for women, and that helped them decide it was actually an undue burden. But Chief Justice Roberts tells us that you shouldn't even ask about the benefits, even if there are no medical benefits for women, that shouldn't enter into the court's analysis, you just ask about what the specific burdens might be and whether they're undue.
Dan Breen:
And I think it very likely that on the basis of this concurrence from the chief justice, that it will be less likely that federal courts in the future will be striking down abortion restrictions, and that those restrictions will have an easier time being sustained. I'm not quite sure, but it's already begun to happen, for example in cases out of the Eighth Circuit. I think that's a significance of this Robert's concurrence, and we shouldn't forget that.
Dan Breen:
We're now have to go on to our next case, and this is the Bostock versus Clayton County case. One of the most important cases from the last term. And the reason it's so important and momentous is that this is the case that addressed the issue over the language in the Civil Rights Act of 1964, prohibiting discrimination because of sex applies to protect the LGBTQ community. This case involved several different plaintiffs, Bostock was only one of them. This man is not Bostock, this is a different plaintiff, this is Don Zarda. Don Zarda was a skydiving instructor on Long Island, and one day he was strapped together very tightly with a woman to whom he was instructing skydiving, so they're kind of tied together like this, about to jump off the plan. And to put her at her ease, Don Zarda told her, "Don't worry, I'm gay." Once the dive was done, she and her boyfriend went to Don Zarda's employer, Altitude Express, and told the employer what Don Zarda had said, and right after that they fired him, and that was in 2010.
Dan Breen:
Don Zarda then sued Altitude Express under the Civil Rights Act claiming employment discrimination. But Altitude Express defended on what they thought was the surefire ground, that they hadn't fired him because of sex, they fired him because of sexual orientation, and that is not an official protected category under the Civil Rights Act, and therefore he's got no case. "If we fire you for any reason ..." I think they may have had their own theories, but at most Zarda could have proven they said that he was fired on the basis of the fact that he was gay, and that's not a protected category, and so he's got to lose the case. No case here according to the defendant.
Dan Breen:
Well, Don Zarda sued anyway, claiming that in fact the Civil Rights Act should apply to him, as other plaintiffs have tried in the past. And it took a decade, but eventually Don Zarda's case eventually got to the Supreme Court this past term. And even though Don Zarda, this man would not live to see it, he died age 44 in a skydiving accident in Switzerland, the suit was continued in his memory, by his sister Melissa and Don Zarda's surviving partner Bill.
Dan Breen:
Justice Gorsuch's opinion, this was a six-to-three case, Justice Gorsuch's opinion ruling in Zarda's favor is a classic example of what lawyers call textualism, which is the leading theory of statutory and constitutional interpretation in the federal courts. And all that means is this. If you want to try to figure out what a statute means and how to interpret it, if you're a judge, you shouldn't ask what Congress meant to do in passing the statute, nor should you ask what a state legislature meant to do in passing the statute, none of that matters very much. All you should ask is what the words say. The statute should only be interpreted based upon the common, plain meaning of the language. The words are the law, not the intent of the legislature.
Dan Breen:
Justice Gorsuch, who is a leading textualist, a disciple of Justice Scalia in this respect, looked at the Civil Rights Act which says literally, quote, "No discrimination because of sex." And he reasoned, as a textualist, that in fact that meant Zarda should win the case, because as you can see in this slide, according to Justice Gorsuch, Zarda was fired because he was a man, who was attracted to other men. He would not have been fired if he was a woman attracted to men, therefore he was fired because of sex, and he should win the case. The Civil Rights Act should apply to Don Zarda, and the other plaintiffs as a matter of fact, in the case.
Dan Breen:
This actually won the day, for that six-justice majority. According to Justice Gorsuch, an employer who fired an individual for being homosexual or transgender, fires that person for traits or actions that it would have not questioned in someone of a different sex. And as you can see on the screen, it's classic textualism because only those actual words, because of sex, matters in the statute, and this is how Justice Gorsuch sees it. And it does not matter that Congress might not have intended this result, for the statute to apply to Don Zarda and the LGBTQ community back in 1964, that doesn't matter, that's legislative intent, what matters is the text according to Gorsuch, because the limits of the drafter's imagination supply no reason to ignore the laws demands Zarda has to win. Only the written word is law, and all persons are entitled to its benefit. Only the written word is law.
Dan Breen:
Well, the case actually had a long dissent from Justice Alito. Here is where our first poll question for all of you to participate in, is about to come in. It's going to come up in a second. But this is textualism according to Justice Gorsuch. And we may want to reduce that just for the time being so everybody can see the language.
Dan Breen:
Textualism for him is, he was fired because he was a man who was attracted to other men, he would not have been fired if he was a woman attracted to men. But according to Justice Alito, that's not the right way to look at it. Justice Alito asked us to imagine a workplace, with an employer with four different employees, a man attracted to men, a man attracted to women, a woman attracted to women, a woman attracted to men. And according to Justice Alito, we can imagine a boss who didn't like gay people, firing number one, the man attracted to men, and firing number three, the woman attracted women, but not the man attracted to women, and not the woman attracted to men. Therefore, according to Justice Alito, discrimination on the basis of sexual orientation is a totally different thing than discrimination on the basis of sex, and Zarda should have lost the case.
Dan Breen:
This is textualism according to Justice Alito. That's Gorsuch, we talked about that a little bit. And this is Alito. And now we can hover a poll question. Which of these versions of textualism persuades you? Is it Justice Gorsuch, or is it Justice Alito? Why don't you just vote, and we'll try to see what the results are a little bit when some of the, at least a critical mass of responses come in. And while you're voting, and while you're thinking about that, let me just point out that textualism is usually thought of as a conservative philosophy, one that usually achieves conservative results, like what you may remember in that frozen trucker case, a conservative result following from textualism that Justice Gorsuch had to answer for in his confirmation hearings.
Dan Breen:
But this case, Justice Gorsuch's opinion shows us that textualism, merely talking about the words, can have progressive results as well in statutory interpretation. It all depends upon the words in the statute. I think in constitutional interpretation, when you're just dealing with the words, it's more likely to be a conservative philosophy, but when it comes to statutes like the Civil Rights Act, it doesn't have to be that way at all. And one way we know that is that, also in this past term, Justice Thomas came out and said that as a matter of textualism, the doctrine of qualified immunity which helps to protect policemen in excessive force cases should be revisited and maybe overturned because there's nothing in the statute that actually allows that. And that is a progressive result of textualism, coming from the pen of the most conservative of our justices, Justice Thomas. He didn't write that in a majority opinion, so we still have qualified immunity for the time being.
Dan Breen:
Now that our results are back, and it looks like 86% of you believe in Justice Gorsuch's version, and 14% in Justice Alito's version, and I can certainly understand that. For one thing, you might argue that Justice Alito's version is a bit more elaborate than Justice Gorsuch's, and therefore maybe not a more faithful interpretation of the words. But that is Justice Alito's argument and deserves some consideration as well, so thank you all for voting. And there'll be another poll a little bit later, coming up after this case right here.
Dan Breen:
Moving right along, we now get to what I think is maybe the most interesting of all the cases this term. Before I get to this case, I just want to point out that Melissa Zarda, remember was Don Zarda's sister, and she's the one the who kept that case going after Don Zarda died, she now lives in Kansas City. And when she heard the news that Zarda had won the case, that the Civil Rights Act would now be interpreted in this way, she was absolutely overjoyed. This is what she said, quote, "I was doing 10 things at once, texting, smiling, laughing, crying. What is happening in this country right now is so awful, we needed this shot of good news desperately right now." That's the way she felt about it. And we certainly do need some good news.
Dan Breen:
And now it's time to take a look at McGirt, which is a five-to-four case. Continuing our theme of words in history as things that actually matter and that can ground judicial decisions in reason and in defensible logic. Let's turn now to the case of Jimmy McGirt, convicted of a series of terrible sex offenses by the State of Oklahoma and sent to state prison.
Dan Breen:
McGirt filed a habeas corpus petition in federal court, asserting that his conviction in state court was in fact wrongful, because McGirt happened to be a Seminole Indian. And the crimes he was alleged to have committed occurred on the Muscogee Creek Indian Reservation of Eastern Oklahoma. That being the case, according to McGirt, his crimes were brought within a statute called the Major Crimes Act of 1885. And what that says is, if you are a Native American, and you commit a major crime as described in the statute, on reservation land, Indian reservation land in Oklahoma, in this case in Oklahoma, that means that as a Native American, you must be tried, if at all, in federal court and not state court. And McGirt was tried in state court even though he was and is a Seminole Indian, and the crime took place on Muscogee Creek Reservation land.
Dan Breen:
And here you can see a map, I hope it's not too obscured by our pictures, that describes the traditional reservation framework in Oklahoma. And there you can see towards the east, the Muscogee Creek Indian Reservation, described as we'll see in the slide, as a former Indian reservation in Oklahoma. That raises a very simple issue, was there still, is there still a Muscogee Creek Reservation in Oklahoma? Because if that reservation still exists, McGirt should have been tried in a federal court, not in a state court.
Dan Breen:
Well, the case has its ultimate origins all the way back in 1829 when President Jackson began pressuring the Creeks to give up their lands in Alabama and move beyond the Mississippi River, where Jackson said, quote, "Your white brothers will not trouble you, and where you can live as long as the grass grows in peace and plenty." In reliance on that promise, the Creeks ceded their lands in Eastern Alabama to the United States in the 1832 Treaty of Cusseta. And then in 1836, after a desperate war of resistance, they were moved forcibly west via the Trail of Tears from Fort Mitchell Alabama, to Fort Gibson Oklahoma, during which 20% of the Muscogee Creeks passed away, died.
Dan Breen:
Now, some of those survivors of the Trail of Tears, once they got to Fort Gibson, made their way a little further up the Arkansas River, and they carried with them, embers of council fires all the way back from where the council fires had been in Alabama. And they took that remnant of their former territory and they buried it under a great oak tree, on a bluff by the Arkansas River which later became the City of Tulsa.
Dan Breen:
The United States described these new lands of the Muscogee Creeks, several million acres of land as a matter of fact, as a, quote, "New and permanent home." And 30 years later, the United State Government, in a separate statute, 1866, described that land as a reservation. But according to Oklahoma, an inflexive white settlement, especially beginning in 1890, at least on a de facto practical basis, are rendered irrelevant, any claim to reservation status. According to Oklahoma there really wasn't a reservation here anymore, especially because under the Dawes Act many individual Creek families had gotten title to land in the reservation and have sold that land to third parties over the course of the years.
Dan Breen:
According to Oklahoma, and in fact according to the United States, there was no longer a Creek reservation. Not only had Congress long since gotten rid of tribal courts by various statutes on Creek lands, it had often, as you see in this slide, in this or that regulation, referred to the former Creek Reservation, using that word former. For Oklahoma therefore, and for the United States, the Treaty of Cusseta was really just a dead letter like so many other treaties. And since that is how Oklahoma and the United States have treated it, under the law, that's how it should be.
Dan Breen:
There was, as a de facto matter, no Creek reservation. Therefore, McGirt was properly tried in state court, and he's got no case. But for Justice Gorsuch, writing on behalf of a five-to-four majority, this cannot be. In 1866, Justice Gorsuch reminds us, the United States specifically recognized Creek authority over a reservation, using that word reservation, with certain specific boundaries. And whatever else it had done over the course of many years since, Congress had never actually withdrawn recognition of that legal-status reservation. Perhaps Congress has broken its word over the years to the Muscogee Creeks. Perhaps it no longer wants to think of this area as a reservation. Perhaps it had acted as if there was no reservation. And perhaps Oklahoma has not wanted to treat this as a reservation, but that cannot change the plain fact that no federal law has ever repealed that 1866 designation of this territory as a reservation. Legally therefore, reservation status remains.
Dan Breen:
If 150 years or so, of unjust and illegal actions were enough to alter, legally, the status of that land, Creek territory, that reservation, then that Gorsuch tells us, would be substituting stories for statutes, and upholding, quote, "The rule of the strong, not the rule of law." Unquote.
Dan Breen:
And I think here we are back with Chancellor Kent in what he said about the role of the federal courts. This is what they're supposed to do, what they do at their best, uphold law, reason over pure power, the rule of the strong. McGirt wins the case and so do the Creeks.
Dan Breen:
Here's what Justice Gorsuch says, "If Congress wants to break the promise of a reservation it must say so, and it never has." In other words, you can't just make a reservation go away by ignoring it and acting as if it does not exist as a legal matter, any more than you can make the Constitution itself go away by ignoring it.
Dan Breen:
And here comes our next question in just a minute. After this decision in McGirt versus Oklahoma, Senator Ted Cruz tweeted that the Supreme Court, quote, "Had just given away half of Oklahoma and that Manhattan would be next." Well of course, the opinion did nothing like that. All it means is that if you are a Native American on reservation land, your major crime case will be tried, if at all, in federal court, not a state court. The opinion will not mean much at all for non-Native Americans who have title to land within the boundaries of the reservation. It does mean however that Oklahoma will have to bargain in good faith, with the Muscogee Creek Nation, in regard to certain matters of policy and jurisdiction, only what they should have been doing for the last over 100 years.
Dan Breen:
This is pretty irresponsible of Senator Cruz, tweeting that the court had just given away half of Oklahoma and that Manhattan would be next. But this does give rise to our next poll question, so now it's time to put that up there. The poll question is this. What was Ted Cruz doing when he should have been paying attention to his professors at Harvard Law School back in the '90s? Was he enjoying brats at the wursthaus? Was he listening to Wonderwall? There's no telling. Now is your chance, and you get to vote on this. I'm curious to see what the answers might be.
Dan Breen:
And while you're thinking about that, let me just make a pretty big point at this junction, and that is that this is one of the few cases during the term where Chief Justice Roberts dissented. He was in the majority over 90% of the time, which is a lot of cases to be in the majority. This is really the Roberts court. He has been described quite accurately as the anchor of this Supreme Court. And what he's been able to do, and I think we saw that in the Russo case, the June Medical Services case, that's the abortion case out of Louisiana, what he's been able to do is he's been able to shift the court in a basically conservative direction, while at the same time maintaining his essential allegiance to the rule of law and to precedent. And that can be a trick, but Chief Justice Marshall pulled that off in the early 19th century, and so did Chief Justice Warren in the '50s and '60s. And now Roberts I think is doing the same thing. Love him or hate him, it's often easy to disagree with Chief Justice Roberts, but it's very difficult to disagree with the proposition that he's a very effective and influential chief justice, and the last term has really displayed that.
Dan Breen:
Now the results are up, of the poll. Only 17% thought he was enjoying brats at the Bursthaus, 15% listening to Wonderwall, there's no telling, 68%. And I would probably agree with that, so that is our second and final poll, but don't forget, you still have to try to figure out what on earth that dog was doing after my discussion of US versus Kelly.
Dan Breen:
Now we can go to the second to last of our cases, moving right along. And this is the case of Trump versus Vance, this is the subpoena case. I'm not going to be talking about the House of Representative subpoena's case, which is decided on somewhat different grounds. Trump versus Vance is a case involving a state subpoena against President Trump's attorney. And in no case did history matter more, I think, than Trump versus Vance, a case arising, as I said, from efforts by the Manhattan District Attorney, to obtain copies of President Trump's tax returns from his accountant, in state criminal proceedings.
Dan Breen:
The issue was quite simple. In such a criminal proceeding, can state officials legally subpoena documents owned by, ultimately, a sitting president, in this case, in the possession of somebody else, but owned by a sitting president? Or does the president enjoy some kind of immunity from such requests. The court unanimously, this is unanimous, rejected the president's argument that he has a complete immunity from such a subpoena. And to see why, Chief Justice Roberts takes us 213 years into the past, when, as he puts it, in his opinion, all eyes were on Richmond Virginia, for the 1807 treason trial of Aaron Burr.
Dan Breen:
As part of his defense to these treason charges, Aaron Burr's lawyers, including the great Luther Martin wanted Marshall to enforce a subpoena, or to uphold a subpoena, to direct President Jefferson to release an October 1806 letter written to him, and in Jefferson's possession, written to him by this man, General James Wilkinson, one of the great scoundrels of American history, in which General Wilkinson had described to Jefferson what he saw as the nature of Burr's treasonous plot.
Dan Breen:
General Wilkinson was indeed the author of that letter. Probably the most untrustworthy man in all of North America. For years, he had been in the pay of the King of Spain, even though he was actually the commander of US forces at New Orleans. Not exactly the sort of person you want to rely on in a criminal proceeding, but nevertheless, it was known to Burr's defense team that Wilkinson had spelled out something about this plot in that letter. Naturally, they want to see what Jefferson knew. They want to look at that letter. Why is it that Jefferson, based upon that letter, had ordered Burr's arrest on charges of treason?
Dan Breen:
In order to get a look at that letter from 1806, they needed a subpoena. And the question is going to be, did a federal court have the power to compel the president, the head of a co-equal branch of government, to relinquish personal correspondence in his possession? Does a subpoena power allow a federal court to do that? And Marshall answered yes back in 1807, reminding us at that time that a president is not a king.
Dan Breen:
He or she, according to the Chief Justice Marshall, has no special dignity that puts them above normal legal processes. What was true in 1807 is still true, Chief Justice Roberts tells us, in 2020. It is a cardinal principle of Anglo-American law, pronounced all the way back in 1742, that the public has a right to every man's evidence. And to carve out an exception, a blanket exception for the president, would be to put him or her above the law, which they emphatically are not.
Dan Breen:
The president can contest subpoenas, fight against subpoenas for the same reason we all can, if they're just there for purposes of harassment, that's not a good use of legal processes. Maybe then we ask a court to quash the subpoena. But nevertheless, the president has no blanket immunity from that legal process, no more than Jefferson did, no more than President Grant did who answered subpoenas during the investigation of the Whiskey Ring Scandal in 1875, President Trump has no immunity from a subpoena, even if it issues on state law enforcement body.
Dan Breen:
Again, this was a unanimous decision, two justices, Justices Alito and Thomas thought that maybe there should be a higher standard for issuing a subpoena when it's the president than for the rest of us, but that's only two. On the basic principle of whether the subpoena should issue, there was a nine-to-nothing unanimous majority against the idea that the president is immune from that process, just automatically because they're president.
Dan Breen:
The most interesting thing about this case for me is not so much the ruling, which I think followed rationally from US versus Nixon and Clinton versus Jones, which had to do with the Paula Jones case. What is striking to me is the Chief Justice's reliance all the way through this opinion, on that precedent, the Aaron Burr trial of 1807. This is an opinion steeped in history, and what it has to offer us insofar as we can think of this as an example of the way power has to bow to law. We hear in the opinion about wagons coming into Richmond from all points of the compass in 1807, to try to watch this famous trial of Aaron Burr. And we are quoted in this opinion, Trump versus Vance, Chief Justice Marshall's grand language at that trial, insisting that the president is, quote, "Of the people." Unquote. Subject to criminal processes, and insisting further that the guilty must not escape, nor the innocent suffer.
Dan Breen:
And Chief Justice Roberts ends the opinion with this sentence, "200 years ago, this man, a great jurist of our court, established that no citizen, not even the president, is categorically above the common duty to produce evidence when called upon in a criminal proceeding."
Dan Breen:
In this summer of 2020, when maybe we have all sorts of reasons to feel bad about ourselves, this at least is something to feel good about, that in fact there is such a thing as the rule of law, and that even though back in 1807 you could never have imagined a British court issuing a subpoena to George the Third, and even though in 2020 you can never imagine a Russian court issuing a subpoena to Vladimir Putin, in this year of 2020 it is to be expected that an American federal court will permit a subpoena to issue to the President of the United States, and that is something celebrate. And it is good to remind ourselves of Chief Justice Marshall in the Aaron Burr trial in this of our national turmoil, an hour, a moment, when reason, law, stood up to power.
Dan Breen:
And shouldn't we call upon such moments? Chief Justice Roberts I think says we should. To maybe delve into his philosophy a little bit, in one of his opinions, in fact it was that June Medical Services case, his concurring opinion, he quotes Burke to try to express part of his philosophy, the Statesman Edmund Burke, where he tells us this, "Because the private stock of reason in each man is small, individuals should avail themselves of the general bank of capital, of nations and of ages." So history does matter.
Dan Breen:
And now finally, we turn to our last case for the evening. One of the most important cases of the term, and I think the most complicated one, maybe the most difficult one to explain, and that's the case of Regents versus, University of California versus Department of Homeland Security, and this is the DACA case which came down from the Supreme Court a couple of months ago. And this case gives us a reason, and I hope you'll join me in this, to praise the Administrator Procedure Act of 1946, one of the most important statutes ever passed by Congress. It does many things, but among the things that it does, one of the most important things it does is it says that the federal courts can overturn an agency decision, a decision of the executive agencies if those decisions are not supported by some reasoned process of deliberation. That is, agencies are not loose canons. Agencies of the executive branch, and cabinets for that matter, can't do any damn thing they want, they've got to have reason behind what they do, some kind of a process by which they're able to undertake a reason, elaboration of why they're doing what they're doing, why they're issuing this rule, why they're making that determination.
Dan Breen:
These rules and determinations govern our fates in many cases, so what we are owed at least, as citizens of the republic, is a reasoned explanation of why this action is being taken. Why are these social security benefits being withheld for example? And what that means is, agency decisions cannot be arbitrary and capricious, and those are the words. And those are the words which would govern this case, the DACA case. DACA standing for, Deferred Action on Childhood Arrivals.
Dan Breen:
Now, here we know, that one's probably familiar to you, that under the Obama Administration, in 2012 the Department of Homeland Security decided not to take deportation action for at least two years, the way it was at the time, against what came to be known as the dreamers. And these were people, young people, taken by their parents on an undocumented basis, from abroad, into the United States when they were children, and who in the meantime have been obeying the law, going to school. There were almost 2,000,000 people in this category of dreamers, but under DACA they would be allowed if they wanted to, to petition for DACA status. And if they were given that status then deportation would not be taken against them, that action would be deferred, at least for a while if they had DACA status. And DACA status in fact was renewable.
Dan Breen:
And according to Chief Justice Roberts in this opinion of his, it's a five-to-four case, nearly 700,000 dreamers took advantage of that process. Very important to this decision is the Chief Justice's way of describing DACA. According to him, it's crucial that there are two parts to DACA. One part is the most important part, the DHS, that's Homeland Security, will forbear from deportation of dreamers once they're a part of the DACA program, once they've applied and been accepted. And the other part is, once they're in the DACA program, they're entitled to benefits, work permits, in some cases social security and Medicare maybe later on. There's two parts to it, forbearance from deportation and entitlement to benefits.
Dan Breen:
Five years later, in 2017, the Trump Administration decided to phase out, ending DACA. No-one questions their basic right to do that. If Homeland Security wants to rescind DACA they can do that. What they did in 2012 in the Obama Administration, they can undo in 2017, that's fine. But the problem is, if they're going to rescind DACA, if they're going to phase it out, they've got to have some grounds for doing so. And in this case what Homeland Security said was that in phasing out DACA, which they decided to do in 2017, they were relying on an opinion by Attorney General Sessions, that ostensibly said that DACA was illegal. And if it's illegal, you shouldn't be enforcing it. Attorney General Sessions had based that opinion on a Fifth Circuit Court of Appeals case, which arguably, maybe had indicated that number two here might be illegal, but it said nothing about number one, discretionary enforcement of deportation proceedings.
Dan Breen:
When Homeland Security began to phase out DACA, they were relying on that letter from Attorney General Sessions, based upon a Fifth Circuit Court opinion, but in this case, five to four, overturning the rescission of DACA, Chief Justice Roberts said that the problem with that decision by the Department of Homeland Security in 2017 was the letter from Attorney General Sessions had been based upon a Fifth Circuit Court opinion that didn't really deal with the benefits part of DACA, that had in fact been dealing with the benefits part of a different, related disposition. And no matter how you slice it, the Fifth Circuit Court of Appeals decision had never dealt with number one here, only arguably with number two. And therefore the decision, or the letter, but Attorney General Sessions had not really had any grounds for saying that DACA was illegal, and therefore the Department of Homeland Security had no good grounds, or on the basis of illegality, rescinding DACA.
Dan Breen:
Without an authoritative ruling that DACA in fact was illegal, Homeland Security needs to articulate a reasoned set of explanations for why it was important or good policy to rescind DACA. And other that reciting language from that opinion letter, which Chief Justice Roberts said was no good, no such explanations were offered by Homeland Security when they decided to rescind DACA.
Dan Breen:
This is what Chief Justice Roberts says, "Most important of all, there was no attempt at Homeland Security to actually look into, in a reasoned way, what would happen to DACA recipients if in fact deferred deportation were to stop and they were to be sent out of the country." We're talking about 700,000 here. And as Chief Justice Roberts tells us, since 2012, I'm quoting from the opinion, "DACA recipients have ..." Quote, "Enrolled in college, gotten jobs, bought homes, married and had children, all on the assumption that they could remain for the time being in the United States." And not only that, we learn in the Chief Justice's opinion that there are employers relying on DACA, had among other things, devoted a lot of resources to training them. And if DACA should be phased out and if these benefits should end, then $6,000,000,000 in training costs will have been wasted, because replacement workers would then have to be trained anew.
Dan Breen:
Without even considering those reliance interests, what it would do to the dreamers if they in fact lost this status, the DHS decision in 2017 lacked a decent rational, was in fact arbitrary and capricious under the Administrative Procedure Act, and therefore should be overturned.
Dan Breen:
And the whole point of making sure an agency decision like this is not arbitrary and capricious is to have and hold the executive branches to their proper functions. It seems to me that although was a complicated case, it's another good example of the Supreme Court pretty much living up to its responsibility that we just saw James Kent back in 1794 articulating for it, and that is to have some part of the government at least, that held to reason, and that will prevent actions tending to trample on our liberties, leading to arbitrary and capricious actions. I think Chancellor Kent might be happy for this vindication of reason as a restraint on power is exactly what judicial review should be all about, and I think is about at its best. And that's been true ever since Marbury versus Madison.
Dan Breen:
Now, the Trump Administration has said, erroneously, that the DACA case actually allows the executive branch to do illegal stuff, but it doesn't do that at all. The opinion is really limited to the special circumstances of DACA. And I think I've just explained, I hope, what it actually does do. It certainly doesn't do what the administration says it does, but so far Homeland Security has more or less ignored this decision and they're beginning to rescind DACA anyway, even though the Fourth Circuit Court of Appeals says what the decision means is that DACA has to be in effect until, or unless, Homeland Security goes through the steps, the process, of a reasoned inquiry into what would happen if DACA is rescinded, exactly the process that Chief Justice Roberts says that they must do, and that they haven't done yet. Ultimately the fate of DACA will depend upon the next election, but I do think this opinion, although complicated, is a pretty admirable exercise in the rule of law at its best.
Dan Breen:
We are just about at the end of my discussion. And I thought maybe before we go any further, we should see if anybody in the question and answer has actually come up with a theory about what that dog was doing after my discussion of Kelly versus United States. I don't know if anybody was paying attention to the question and answer, but what on earth was that dog doing there? Anybody know? And if nobody knows, then I get to tell you. Okay, well the reason that dog was there, that dog was a Pomeranian, and Fort Lee New Jersey, is named after General Charles Lee, who was a member of the Officer Corps in the American Revolution. And General Charles Lee was the man who introduced the Pomeranian breed into the United States, so that's why that dog was there.
Dan Breen:
And before we go to the official question and answer session, I did want to point out a couple more things, and maybe ask you to join me in a little toast, Calvin Duncan, the jailhouse lawyer from Angola is out of prison. The Innocence Project was able to persuade Louisiana to release him based upon the fact that he should never have been there anyway. And not only did he go to Tulane University and get a degree in 2019, but Calvin Duncan is about to enroll at Lewis and Clark Law School in Oregon. To which I say, why on earth is he becoming a first-year law student at Lewis and Clark? He should be the dean based upon everything he's done, but that's just me. And so maybe this gives us an opportunity, for all of you, to join me in a little toast, you don't have to have adult beverages, it can be whatever's on hand, I happen to have City of Waltham water right here, that's what I'm using. I'd like to propose a toast to Calvin Duncan, who gave us essentially the Ramos opinion, and Don Zarda, and James Kent who you see here on the upper left, and especially to the rule of law and the Constitution of the United States.
Dan Breen:
And with that, maybe if there's any questions, at this point I could help you with some of them. Luckily, there's about 300 of you out there. If I don't know the answer probably somebody will, it's very likely that I won't. But if there happen to be any interesting questions maybe we could entertain them at this point.
David Morris:
Prof. Breen I think a couple questions in the Q&A to start with here.
Dan Breen:
Okay.
David Morris:
The first one, question, didn't Gorsuch say in Ramos versus Louisiana that the racist history of the non-unanimous juries was relevant in the decision? And then how does that square with his textualist philosophy?
Dan Breen:
Oh, well because the reason he thought that was an important part, not dispositive as I said, but an important part of what the court should talk about, is it helps to point out that the non-unanimous jury was an outlier in our tradition, that the non-unanimous jury is not really a part of what we understand as due process. It has a special, contingent historical element. And as such, maybe we shouldn't respect it as much as we might something that has been true of criminal processes ever since the 18th century. The racist motivation helped Justice Gorsuch make that case.
Dan Breen:
If a non-unanimous jury had been the case in 10 15 states, and it was really all just about determination somewhere, that maybe they're not so bad, that might have been a more difficult case. But the racist motivation remains important because it demonstrates that this has never been something that was viewed as a fundamental part of our tradition. It's an outlier, and it goes against our tradition at its best. That's really why he wanted to point that out.
David Morris:
All right, just so you know, we're at 9:00, so we're probably going to do a couple questions before we call it, noting the time. But in regards to the Oklahoma case, there's a question that wants to know, why does it matter in that case if the case is tried in federal court or state court?
Dan Breen:
Why does it matter? As a practical matter, it doesn't matter very much. It'd bet the same kind of evidence, it may well be that McGirt and his lawyers think they might get a fairer case in a federal trial, but I have no way of know that, that's not always true, definitely as a general matter. I don't think it makes a practical difference, but if you've been convicted by a state court, and now you're in prison, you'd like another chance, you really have nothing to lose, and this would at least be another way to get another chance.
Dan Breen:
I don't know he's got other evidence to bring up that wasn't brought up at the original trial. Sometimes it's difficult to introduce such evidence, but I just believe that he wanted at least one more chance, maybe something for him that maybe would result in a different verdict, although I highly doubt that it would. It's really important to us as observers, maybe as a private matter, more important to us than it is to McGirt.
David Morris:
Another question, are there any ... Are there a couple of key decisions from the past years that highlight the unique nature of the Roberts court as you described it?
Dan Breen:
Well yeah, there are two decisions actually, that I think tell us something important about the Roberts court, and they all had something to do with the same basic issue, and that is that if you are working for a religious institution, like a religious school, and you're fired, can you take advantage of the protections offered by the Civil Rights Act? And under the law the courts usually don't like to interfere with religious institutions and their personnel decisions. If you're a minister, a rabbi, somebody who is actually in that kind of capacity for a religion, you enjoyed what's called the ministerial exception, which means it's really up to the church, up to whatever religious body we're talking about, what happens to you. They can fire you or not.
Dan Breen:
But what happened in the last term, this is one of the cases that I didn't have time to talk about, is that the Supreme Court extended that ministerial exception to teachers at religious schools, even though they're not actually conveying religious sentiment, even thought they're doing things like teaching math and science, and things like that. That's a pretty interesting and broad extension of this exception to civil rights legislation. Essentially, you have no federal cause of action if you've been dismissed from a job at a private religious school. I guess there might be some circumstances where you might have some cause of action, but in general you wouldn't.
Dan Breen:
And that really shows us something about the Roberts court. They are really protective of religious institutions. They're really protective of free exercise of religion, and we saw that also in another case, and that's that Montana case where the Supreme Court said the Montana Constitution violated the US Constitution in being interpreted, which is what the Montana Supreme Court did, interpreted as not allowing religion, not allowing state aid to go to religious schools if state aid is going to other schools. This is a court that really is protective of religious freedom, and that's one of the most distinguishing things about it. And there'll be some religious freedom cases coming up actually, in the next term to pay attention to.
David Morris:
All right, so two more questions before we finish up. In Bostock you spoke about Don Zarda's sexual orientation, but what about transgender plaintiffs? They weren't terminated from their jobs because of their gender, they were terminated because they were transitioning. And that's something that was not including in the text no matter how you interpret the word sex. I'm just curious to hear your thoughts on that question.
Dan Breen:
Yeah, so that's an excellent question. I think that the basic idea that you would fare differently if you were transitioning, in such a case, than you would if you were not, would mean that under Gorsuch's opinion those protections would still apply to you. It may require and understanding or a definition of sex that may not be what Justice Gorsuch necessarily had in mind, but if you just think about two similarly situated people, one in one category and the other, and they're losing their job at a time when they wouldn't if they had been a different sort of person, not transitioning for example, then it seems to me the reasoning has got to apply to them. Although, maybe it wouldn't be as cut dried as it was in the Zarda case.
Dan Breen:
But we specifically hear in the opinion about LGBTQ people. It strikes me as something where the opinion has to be read as applying in the situation you just talked about.
David Morris:
And last ... Okay, thank you. Last question, can you address Justice Alito's dissent in the Louisiana non-unanimous jury case? He considered the racist history that Justice Gorsuch recited to be irrelevant due to the state's readopting of the rule and the equivalent of an ad hominem attack on the state's dignity and honor.
Dan Breen:
Oh yeah, I really should be able to talk about that, but I read that dissent thoroughly a little while ago, and I think I would have to bring it more closely to mind before I could comment on it in any way that would be at all informative. If anybody wants me to write about that, that's actually an interesting question. You can always write to my email address and I could let you know what I think. But I wish I had maybe prepared to the extent of looking more carefully at that dissent. I was mostly thinking about the majority opinion. I'm sorry about that.
David Morris:
Prof. Breen this has been absolutely fantastic, incredibly educational and we really appreciate your giving us so much time so kind of educate us on so many of these important cases. Thank you so much again. And remind everyone that this will be, in about a week, will be in the very nice virtual library. And look forward to seeing all of you, hopefully, at the next virtual events, and we'll have some more very nice lawyer's events coming up virtually as well. And thank you all very much for attending.