The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
In keeping with our podcast's promise of being "unscheduled and unpredictable," my co-host Dan Epps and I managed to schedule a series of awkwardly timed trips throughout the month of June, which is a really ironic way to run a Supreme Court podcast. But yesterday we did manage to release a long episode, Demokratia, that might be of interest to Conspiracy readers. Here's the summary:
We record our first inter-continental episode, as Will reports in from a visit to Tel Aviv. We then dive in to two of this month's opinions: Haaland v. Brackeen, which rejects a series of challenges to the Indian Child Welfare Act, and United States v. Hansen, which upholds a federal immigration law against a free speech overbreadth challenge.
The title of the episode is the Hebrew word for "democracy," inspired by the experience I summed up in this tweet (though I got the translation wrong):
Last night I went to watch the protests against judicial reform in Tel Aviv. Truly amazing that more than a hundred thousand people would turn out, week after week, to chant "democrati" in the name of defending a court from politics. pic.twitter.com/EPinYVERug
— William Baude (@WilliamBaude) June 18, 2023
In our subsequent discussion of Haaland v. Brackeen, much discussed by others on this blog, I discuss a potential pattern in Justice Barrett's treatment of precedent, something I had noticed earlier in her concurrence in Fulton v. City of Philadelphia and which is reflected as well in her majority opinion in Brackeen. I think of it as the "look before your leap" principle.
In both cases, Justice Barrett wants some account of where a theory of the law is supposed to take her before she decides whether to embrace it. In Brackeen, that's a theory of how to reconcile—or to not reconcile, either one!—the challengers' theory of federal Indian power with the Court's cases. In Fulton it's a theory of what would replace Employment Division v. Smith if Smith is to be overruled. It demonstrates, I think, a quite sensible refusal to just muddle through and assume the law will sort itself out later.
To be sure, there are important differences between these two examples. In Fulton, the question was whether to overrule a major precedent; in Brackeen part of the problem was a prior one, an insufficient explanation of whether the parties wanted major precedents overturned and if so which ones. But I think it will be worth watching for future examples of this principle, which I expect we will see.
The podcast will likely stay dark for a couple weeks, and then start analyzing the end-of-term cases just when you least expect it.