The Volokh Conspiracy

I started teaching in August of 2012. One month earlier, the Court decided NFIB v. Sebelius. And one month later, a cert petition was filed in United States v. Windsor. At the time, I and everyone else recognized that DOMA was doomed. The only question concerned on what grounds the Court would rule. Would it be the Due Process Clause or Equal Protection "component" of the Fifth Amendment? Or would Justice Kennedy adopt a federalism-based argument--perhaps along the lines of a brief submitted by several Volokh conspirators. Ultimately, Justice Kennedy did what he did best: sprinkle a bit of Due Process, grate some Equal Protection, add a pinch of dignity, let it simmer over a low flame of federalism, and voila--Liberty!

No one really cared about the reasoning. What mattered was the bottom line--love wins! And more importantly, Justice Kennedy gave a green light to every judge to strike down marriage laws. But one part of the majority opinion seems especially relevant for Brackeen. The Court discussed at some length why the federal government, historically, "has deferred to state-law policy decisions with respect to domestic relations." Indeed, the Court relied on this principle to show that the federal Defense of Marriage Act was unconstitutional.

One would think that Brackeen should have addressed Windsor. While DOMA merely defined marriage for purposes of federal law, leaving state laws intact, ICWA forces every state to enforce a federal domestic law. But Justice Barrett does not even cite Windsor. Look how quickly she cabins unhelpful precedent:

It is true that Congress lacks a general power over domestic relations, In re Burrus (1890), and, as a result, responsibility for regulating marriage and child custody remains primarily with the States, Sosna v. Iowa (1975). See also Moore v. Sims (1979). But the Constitution does not erect a firewall around family law.

Barrett cites several cases in which federal law pre-empts state family laws. But none of these cases comes even remotely close to what ICWA does. We aren't merely talking about preemption--ICWA dictates, even commandeers, states to award custody of children to tribal members. There is no precedent on point. Rather than cabining non-originalist precedent, Justice Barrett--as well as the other two Trump appointees--quietly extends federal power without any hesitation. And she drags James Madison into this sordid business:

Petitioners are trying to turn a general observation (that Congress's Article I powers rarely touch state family law) into a constitutional carveout (that family law is wholly exempt from federal regulation). That argument is a nonstarter. As James Madison said to Members of the First Congress, when the Constitution conferred a power on Congress, "they might exercise it, although it should interfere with the laws, or even the Constitution of the States." 2 Annals of Cong. 1897 (1791). Family law is no exception.

Justice Alito, in dissent, does cite Windsor, and calls out how unprecedented this holding is:

As the majority observes, we have held that federal legislation that regulates certain "economic aspects of domestic relations" can preempt conflicting state law. . . . But we have never held that Congress under any of its enumerated powers may regulate the very nature of those relations or dictate their creation, dissolution, or modification. Nor could we and remain faithful to our founding. "No one denies that the States, at the time of the adoption of the Constitution, possessed full power over" ordinary family relations; and "the Constitution delegated no authority to the Government of the United States" in this area. Haddock v. Haddock (1906). It is a "most important aspect of our federalism" that "the domestic relations of husband and wife"—and parent and child—are "matters reserved to the States and do not belong to the United States." Williams v. North Carolina (1945).

In Brackeen, Justice Barrett has a heads-I-win-tails-you-lose approach to stare decisis. When the petitioners failed to fully consider every conceivable precedent, they failed to meet their burden. When petitioners identified that precedent does not support the respondents' case, they still failed to meet their burden because the Court set a new precedent.

Justice Scalia in Windsor was right, as always: "The only thing that will 'confine' the Court's holding is its sense of what it can get away with."

Earlier this month, I overheard a conversation during a trip to Florida. A woman on vacation from Ohio was complaining that the Cleveland baseball team changed its name from the Indians to the Guardians. She stated, without any sense of irony, that "natives did not want to change the name." Of course she was referring to baseball fans in Cleveland, who did favored the Indians name--that is, the "native" people in Ohio. I do not think she realized that the people who favored the name change were, quite literally, natives! That is, Native Americans who objected to the Indian name and logo. And, to be precise, there were natives in present-day Ohio before there were white settlers. Still, the people who had the closest connection with the baseball team objected to intermeddling by tribes who cared little for the team's history, but instead, were promoting non-baseball goals that were important to the tribes.

This conversation neatly sums up the dispute between Justice Gorsuch and Justice Alito in Brackeen. (I swear, this conversation actually happened--I couldn't make it up if I tried.)

Let's start with Justice Alito, who is, after all, a big baseball fan. (I do not know if Justice Gorsuch is celebrating the Nuggets' victory.) His dissent states, clearly, that ICWA "subordinat[es] what family-court judges—and often biological parents—determine to be in the best interest of a child to what Congress believed is in the best interest of a tribe." Alito discusses in heart-string-tugging detail the cases of the poor children who were plucked from their loving adoptive families by the meddling tribes. Indeed, one of the children was placed with a maternal grandmother, "who had lost her foster license due to a criminal conviction." Alito is clearly on the side of the adopted parents, and not the tribes. And, for good measure, Justice Alito jabs the tribes in Footnote 1:

The state of affairs on many Indian reservations, however, does not speak well of the way in which these duties have been discharged by this putative trustee. See, e.g., U. S. Commission on Civil Rights, Broken Promises: Continuing Federal Funding Shortfall for Native Americans102–107, 135–138, 156–157, 165–166 (Dec. 2018) (discussing poor performance of students in tribal schools, substandard housing and physical infrastructure on reservations, and high rates of unemployment amongIndians living on reservations).

Why mention these statistics? Alito suggests that these vulnerable children will be placed on reservations where they will be subject to poor living conditions. In other words, the Tribes have not lived up to their ends of the bargain. The implication: better for the kids to stay with non-Indian parents who can serve the best interest of the child.

I suspect Justices Thomas and Alito would contend that the tribes intervening in ICWA cases are not doing so to preserve the best interest of the children--many of whom have no actual connections to Tribes--but instead to promote broader notions of tribal autonomy, in the abstract. To use a phrase from the opinion, the children are mere commodities.

Also on Thursday, the Supreme Court decided Lac du Flambeau Band of Lake Superior Chippewa Indians v. Coughlin. The question presented concerned abrogation of tribal sovereign immunity. But the facts do not paint the Band in particularly favorable light.  Coughlin, the plaintiff, took a payday loan from Lendgreen, which is ostensibly operated by the Indian tribe. Coughlin declared bankruptcy, which should have triggered an automatic stay against further collection efforts. But Lendgreen did not stop. Justice Jackson explained, "Coughlin alleges that Lendgreen was so aggressive in its efforts to contact him and collect the money that he suffered substantial emotional distress, and at one point, even attempted to take his own life."

Justice Thomas's dissent suggests that tribal immunity has led to tribal impunity:

Finally, this Court's tribal immunity doctrine continues to artificially exempt tribes from generally applicable laws.I warned nearly a decade ago that tribal immunity "will continue to invite problems, including de facto deregulation of highly regulated activities; unfairness to tort victims; and increasingly fractious relations with States and individuals alike." Id., at 825. This is a case in point. In order to avoid state payday loan regulation, "payday lenders . . . often arrange to share fees or profits with tribes so they can use tribal immunity as a shield for conduct of questionable legality." Ibid. Petitioners here rely on tribal immunity to avoid not only state but also federal payday loan regulation.They further seek to leverage this immunity to pursue respondent on his debt while other creditors' collection efforts are stayed. Tribal immunity thus creates a pathway to circumvent vast swaths of both state and federal laws.

Again, I suspect that Justices Thomas and Alito are skeptical of claims to tribal sovereignty in light of how they exercise that autonomy: business interests that rely on exemptions from generally-applicable state and federal laws, such as gambling, payday lending, and sale of alcohol and tobacco, to say nothing about violent Indian criminal defendants who will not actually be prosecuted by Indian tribes post-McGirt.

Framing matters at the Supreme Court. If you read Justice Gorsuch's concurrence in Brackeen, you would think that ICWA is an essential law to preserve Native American culture and the future of the tribes. Part I of his dissent warns about the "existential threat to the continued vitality of Tribes." But if you read Justice Alito's dissent, you would think that ICWA forces states to surrender vulnerable non-Indian children to poorly-run tribes. On the Supreme Court, and all courts, framing is very important.

One final note. Many media accounts have focused on the fact that Chief Justice Roberts and Justice Barrett have adopted children, which may help explain their vote. But lost in this narrative, as usual, is Justice Thomas. He was de facto adopted by his grandfather and grandmother. Thomas moved from his birthplace of Pin Point, Georgia, which was steeped in Gullah culture, to a much larger city, Savannah, where he was able to obtain a formal education, and start his path to the Supreme Court. (You may have read about that home in Savannah.) Later, Justice Thomas de facto adopted his grandnephew to give him a better life. I would think Justice Thomas's life experiences may have some relevance here. But as usual, he is ignored.

I have much to say about Brackeen. I noted in my earlier post that the primary intellectual joust occurred between Justices Gorsuch and Thomas. Here, I'll start with Justice Barrett's majority opinion. In one sense, the majority opinion is underwhelming. The Court does not break any new ground with regard to the Indian Commerce Clause, fails to fully-explain the so-called plenary power doctrine, and adopts a really narrow conception of redressability to avoid tackling the equal protection issue. (Justice Barrett readily cited California v. Texas on that last point.) But if you read between the lines, Justice Barrett seems annoyed that the plaintiffs did not present a better case. It seemed like she was open to ruling in favor of the plaintiffs, but their lawyers didn't make the case.

Here's the tell. Search for the word "Petitioners." Over and over again, Barrett refers not to the actual Petitioners--that is, the families challenging ICWA. Rather, she is referring to counsel for Petitioners, and the arguments they make. Barrett consistently knocks the lawyers, led by the Texas Solicitor General, for failing to present fully-developed arguments. I felt like I was reading a Professor grading a student's paper. And Professor Barrett was not pleased.

Consider a sampling:

• Petitioners are trying to turn a general observation (that Congress's Article I powers rarely touch state family law) into a constitutional carveout (that family law is wholly exempt from federal regulation). That argument is a nonstarter.

• Ticking through the various sources of power, petitioners assert that the Constitution does not authorize Congress to regulate custody proceedings for Indian children. Their arguments fail to grapple with our precedent, and because they bear the burden of establishing ICWA's unconstitutionality, we cannot sustain their challenge to the law.

• Even the judges who otherwise agreed with petitioners below rejected this narrow view of the Indian Commerce Clause as inconsistent with both our cases and "[l]ongstanding patterns of federal legislation." 994 F. 3d, at 374–375 (principal opinion of Duncan, J.). Rather than dealing with this precedent, however, petitioners virtually ignore it. [If only the students at Stanford had read Judge Duncan's opinion!]

• Once again, petitioners make no argument that takes our cases on their own terms.

• Presumably recognizing these obstacles, petitioners turnto criticizing our precedent as inconsistent with the Constitution's original meaning. Yet here too, they offer no account of how their argument fits within the landscape of our case law. For instance, they neither ask us to overrule the precedent they criticize nor try to reconcile their approach with it. They are also silent about the potential consequences of their position. Would it undermine established cases and statutes? If so, which ones? Petitioners do not say.

• We recognize that our case law puts petitioners in a difficult spot. We have often sustained Indian legislation without specifying the source of Congress's power, and we have insisted that Congress's power has limits without saying what they are. Yet petitioners' strategy for dealing with the confusion is not to offer a theory for rationalizing this body of law—that would at least give us something to work with. Instead, they frame their arguments as if the slate were clean. More than two centuries in, it is anything but.

• If there are arguments that ICWA exceeds Congress's authority as our precedent stands today, petitioners do not make them.

• If ICWA commandeers state performance of a "core sovereign function," petitioners do not give us the details.

• When a federal statute applies on its face to both private and state actors, a commandeering argument is a heavy lift—and petitioners have not pulled it off.

• The individual petitioners do not dispute—or even address—any of this.

And even when Texas tried to reconcile the disparate precedents, Barrett faulted the SG for failing to explain why Congress's powers were so limited:

• Texas floated a theory for the first time at oral argument. It said that, taken together, our plenary power cases fall into three buckets: (1)those allowing Congress to legislate pursuant to an enumerated power, such as the Indian Commerce Clause or the Treaty Clause; (2) those allowing Congress to regulate the tribes as government entities; and (3) those allowing Congress to enact legislation that applies to federal or tribal land. Tr. of Oral Arg. 55. According to Texas, ICWA is unconstitutional because it does not fall within any of these categories. We have never broken down our cases this way. But even if Texas's theory is descriptively accurate, Texas offers no explanation for why Congress's power is limited to these categories.

Readers may recall that in Lopez, Chief Justice Rehnquist create somewhat arbitrary categories to describe the Court's Commerce Clause precedents. Texas attempting to do much the same. And Justice Barrett did not even attempt to explain why Texas's buckets were wrong.

Throughout the opinion, Justice Barrett placed the burden squarely on the petitioners--and that burden was staggeringly heavy. In dissent, Justice Thomas acknowledged that some of the arguments were lacking:

While I share the majority's frustration with petitioners' limited engagement with the Court's precedents, I would recognize the contexts of those cases and limit the so-called plenary power to those contexts.

But Justice Thomas countered that the majority inverted the burden:

In the normal course, we would say that the Federal Government has no authority to enact any of this. Yet the majority declines to hold that ICWA is unconstitutional, reasoning that the petitioners before us have not borne their burden of showing how Congress exceeded its powers. This gets things backwards. When Congress has so clearly intruded upon a longstanding domain of exclusive state powers, we must ask not whether a constitutional provision prohibits that intrusion, but whether a constitutional provision authorizes it.

The dissent followed a presumption of liberty. The majority hewed to a presumption of constitutionality. Justice Gorsuch, who in every other context places burdens on the federal government, joined Justice Barrett with alacrity.

There is an unfortunate asymmetry on the current Court. Progressive lawyers can present the most half-baked ideas and still cobble together five votes with ease, because legitimacy. It doesn't even have to be baked! A raw kernel of an idea is enough. The Chief chef will cook up a blue-plate special, and Justice Kavanaugh will ladle it out. But to get Justice Barrett's vote, conservative lawyers need to submit the equivalent of a peer-reviewed law review article that fully considers every possible implication of how the theory affects every Supreme Court decision ever written. Short of that, they are going to lose.

I wrote in January about a New York trial court decision that allowed the New York Attorney General's office to subpoena VDARE's records related to alleged financial self-dealing by nonprofit directors; I quoted extensively from the decision. Peter Brimelow of VDARE has written up a response to the Attorney General's allegations, and I'm glad to pass it along as a counterpoint to the court decision. I've also updated the original post to link to the response.

Randy Barnett's The Original Meaning of the Commerce Clause was cited on Thursday by Justice Thomas's dissent in Haaland v. Brackeen and on May 25 in Justice Thomas's concurrence in Sackett v. EPA, and Sam Bray's "Necessary and Proper" and "Cruel and Unusual": Hendiadys in the Constitution was cited on Thursday by Justice Gorsuch's dissent in Lac du Flambeau Band of Lake Superior Chippewa Indians v. Coughlin. Nice!

On Thursday, the Supreme Court decided Haaland v. Brackeen. This 7-2 decision upheld provisions of the Indian Child Welfare Act (ICWA) that governed adoptions of children with some connection to an Indian tribe. The opinion, in total, stretched 133 pages. (Obergefell, by contrast, was only 103 pages!) Justice Barrett's majority opinion was 34 pages. Justice Gorsuch's concurrence, which was joined in part by Justices Kagan and Jackson, was 38 pages long. Justice Kavanaugh wrote a brief solo concurrence. Justice Thomas wrote a 40-page solo dissent. And Justice Alito dropped a pithy ten-pager.

I will have much more to say about this case in a series of posts. For now, you can download the edited version of the case for the Barnett/Blackman 2023 supplement. I've distilled the case down to about 30 pages. If you want to assign this case in class, to be frank, I would simply assign the Gorsuch and Thomas opinions. The majority opinion breaks little ground, and goes out of its way to not decide questions.

More to come soon--and I still have to write about Polansky, Qui Tam, and Justice Souter!

See Lenore Skenazy's Reason article with that title:

A mom took to TikTok, begging for advice: "My kid was outside, another kid was walking outside somewhere, and then they stopped and started playing together."

She was baffled.

The mom went on to explain that the unknown kid was 8 years old. He was polite and seemed well cared for. He came into the house with her son, and they proceeded to play video games all afternoon. The polite, nameless boy didn't leave for six and a half hours.

That was the issue.

The search warrant that authorized the search of Mar-A-Lago in August 2022 cited three statutes: 18 U.S.C. §§ 793(e), 1519, and 2071. Section 793(e) prohibits "unauthorized possession" of "information relating to national defense." Section 1519 prohibits destruction or falsifications of records in a federal investigation. And Section 2071 likewise prohibits concealment or removal of certain records. Critically, a person convicted of violating Section 2071 "shall forfeit his office and be disqualified from holding any office under the United States." (There's that language again--Groundhog Day!)

If Trump were convicted of violating this statute, would he be disqualified from holding the office of the presidency? Put aside for a moment whether the presidency is an "office under the United States" for purposes of Section 2071. Under U.S. Term Limits v. Thornton, Congress cannot add additional qualifications for an elected federal position. My colleague Seth Barrett Tillman addressed this argument in September. But even if Trump were convicted of this statute, the trial court would have no occasion to decide whether Trump was in fact disqualified from the presidency. That decision could only come in follow-up litigation, should Trump seek to hold some other office. Still, hovering over a Section 2071 prosecution would be the specter that a conviction could lead to Trump's disqualification. And I think that political storm could create a distraction from the underlying merits of the case.

Fast-forward to the present. Special Counsel Smith indicted Trump for violating Section 793(e). This statute does not impose any sort of disqualification. The indictment also references Section 1519, though not under a specific count. However, Smith did not bring a charge under 18 U.S.C. § 2071. Why?

The New York Times published an article titled, In Trump Prosecution, Special Counsel Seeks to Avoid Distracting Fights. The article explains that, at least so far, Smith has taken actions to minimize ancillary disputes, and instead focus on the underlying merits. For example, Smith did not seek any bond conditions on Trump, such as limiting Trump's ability to have contact with co-defendants, victims, and witnesses. The Times offers this commentary:

It also provided telling insights into the fist-inside-a-kid-glove approach that Mr. Smith and his team employed: an aggressive fast-track approach to prosecution coupled with a conspicuously respectful posture toward the defendant. Mr. Smith's decision not to demand any conditions at the arraignment, people familiar with the situation said, reflected a belief that prosecutors should avoid impairing Mr. Trump's ability to campaign. He is also seeking to dodge potentially distracting elements to a case focused on concrete evidence about the former president's handling of classified documents and efforts to obstruct government efforts to reclaim them.

Jack Goldsmith explains that Smith's strategy is designed to lower the "temperature" on this red-hot matter:

"The prosecution of a former president and the current political rival of President Biden is obviously hugely politically fraught and comes against the background of prior Justice Department actions against Trump marked by error and excess," said Jack Goldsmith, a Harvard Law professor and former assistant attorney general. "Trump and his allies will do everything they can to demonize the prosecution as unfair," he added. "It makes perfect sense that Smith, who has the law clearly on his side, would do everything he can to avoid raising the temperature on the matter further."

This background may explain why Smith did not bring an indictment under Section 2071. Such a charge would have ushered in a political storm that distracts from the underlying goal: a fast-track prosecution for failing to turn over the documents.

Conspicuously absent from the indictment was a potential charge that had been listed in the affidavit the Justice Department filed to obtain a search warrant for Mar-a-Lago last summer: Section 2071 of the federal criminal code, which prohibits the concealment and mishandling of sensitive government documents.

It was the only crime on the sheet that might have directly affected Mr. Trump's 2024 presidential bid, requiring that anyone convicted of it "shall forfeit his office and be disqualified from holding any office under the United States."

Many legal scholars believe that the provision is unconstitutional and would have ultimately been struck down if it were imposed on Mr. Trump. But Mr. Smith's team sidestepped the issue altogether, leaving it out of their 37-count indictment on a section of the Espionage Act that imposes a prison term but no restrictions on holding office.

"I think it's a very savvy move not bringing that charge," said John P. Fishwick Jr., who was the U.S. attorney for the Western District of Virginia from 2015 to 2017. "It makes this much less about politics — this is about the evidence, not about blocking him from office."

This strategy seems prudent, and minimizes any charges of politicization. Smith's decision to avoid a Section 2071 charge in Florida may provide some tea leaves about his plans for the District of Columbia with regard to January 6. Many scholars and advocates have urged the special counsel to indict Trump for violating 18 U.S.C. § 2383, the federal insurrection statute. It provides:

Whoever incites, sets on foot, assists, or engages in any rebellion or insurrection against the authority of the United States or the laws thereof, or gives aid or comfort thereto, shall be fined under this title or imprisoned not more than ten years, or both; and shall be incapable of holding any office under the United States.

There's that language again--Groundhog Day! I think it is widely agreed that Section 2071 cannot be used to disqualify a defendant from the presidency. But there is some debate about whether Section 2383 could disqualify Trump from the White House, to the extent that it invokes Section 3 of the Fourteenth Amendment. Seth and I wrote an article in early-2017 contending that this statute could not disqualify Trump from the presidency. (Ned Foley recently flagged our views on the Election Law Blog). But, to quote a recent brief, our view is probably idiosyncratic. Ultimately, Trump's lawyers may find our views with regard to Section 2383 more persuasive than our views on the federal removal statute.

If the Times is correct about Smith's strategy, then a Section 2383 prosecution would go beyond distracting--it would consume the nation. A single jury in the District of Columbia could make a finding of guilt that could place Trump's ability to run for re-election in doubt. Smith has very good reasons to avoid these problems. If he pursues an indictment based on Trump's January 6 conduct, there are many other charges he could bring that would avoid distracting fights.

To date, DOJ has not indicted anyone on Section 2383. Rather, the government has prosecuted Stuart Rhodes and the Oath Keepers under charges of seditious conspiracy. This statute does not impose any sort of disqualification. Would Special Counsel Smith seek to make Trump the test case for Section 2383? I am doubtful.

In any event, even if Trump were convicted of violating Section 2383, the district court would have no occasion to decide the scope of disqualification. This litigation would almost certainly arise on ballot litigation, with a resolution by the Supreme Court, if not in Congress on January 6, 2025.

On May 18, Seth Barrett Tillman and I published a post on Lawfare, titled Why the Manhattan DA's Trump Case Cannot Be Removed to Federal Court. We wrote that "there are good reasons to conclude that the elected president was not an 'officer of the United States,' so the case should stay in Manhattan criminal court." Two weeks later, Alvin Bragg, the District Attorney of New York (DANY) argued that Trump was not an "Officer of the United States," so the case should stay in Manhattan criminal court. We wrote about the filing here.

Yesterday, Trump's attorneys filed the opposition to DANY's motion to remand. Part I of the brief cites several Blackman/Tillman publications:

The President of the United States is an "officer . . . of the United States" under 28 U.S.C. § 1442(a)(1). DANY's argument to the contrary is unconvincing and the Court should reject it. Although DANY disappointingly never gives them any credit, DANY's argument is cribbed, at times nearly word-for-word, from a recent Lawfare blog post by Professors Blackman and Tillman. See Josh Blackman and Seth Barrett Tillman, Why the Manhattan DA's Trump Case Cannot Be Removed to Federal Court, Lawfare, May 18, 2023, available at https://www.lawfareblog.com/why-manhattan-das-trump-case-cannot-be-removed-federal-court. But while this argument—that elected officials, including the President, are not "officers of the United States"—has been advocated by these professors for some time,[FN1] to our knowledge it has never been accepted by any court.

[FN1]: See, e.g., Seth Barrett Tillman, Why Our Next President May Keep His or Her Senate Seat: A Conjecture on the Constitution's Incompatibility Clause ("Our Next President"), 4 Duke Journal of Constitutional Law & Public Policy 107 (2009); Seth Barrett Tillman & Josh Blackman, Offices and Officers of the Constitution, Part I: An Introduction, 61(3) S. TEX. L. REV. 309 (2021); Seth Barrett Tillman and Josh Blackman, Offices and Officers of the Constitution, Part III: The Appointments, Impeachment, Commissions, and Oath or Affirmation Clauses, 62(4) S. TEX. L. REV. 349 (May 2023). To be clear, we mean no disrespect to either of these fine academics but their views on this matter are idiosyncratic, see, e.g., Our Next President, at 5-6 (collecting the contrary views of numerous scholars), and of limited use to this Court.

I am grateful for the citation. Moreover, I think this brief models how attorney can cite those they disagree with.

Going forward, the issue of whether the President is an "Officer of the United States" is squarely teed up. And the parties are squarely at odds on an important issue of federal law that affects the Executive Branch. The Department of Justice should weigh in.

I'll repeat what Seth and I wrote back in May:

Before ruling, the court should consider calling for the views of the Department of Justice. The executive branch has an institutional interest to represent the president's unique station in our constitutional framework.

Stay tuned for more.

On Thursday, the Supreme Court decided Lac Du Flambeau Band of Lake Superior Chippewa Indians v. Coughlin. The majority held that the phrase "other foreign or domestic government" in the bankruptcy code includes Indian tribes. Justice Gorsuch in dissent, however, found that under the clear statement rule, Indian tribes were not covered by this language. Thus, for the ninth consecutive time, Gorsuch wrote an opinion ruling for the Indian tribes.

I had attended oral argument in this case back in April. Justice Gorsuch offered an admittedly "silly" hypo.

JUSTICE GORSUCH: --before we leave that, though, let's say --I'll give you a silly hypothetical. Let's say I invite you to go to my refrigerator and take out either vanilla or chocolate ice cream and help yourself. Does that license you to take the last scoop of the chocolate-vanilla swirl ice cream in a separate container, maybe one with a note on it that says "reserved for a later birthday"?

And wouldn't you know it, that exact hypo made it into Justice Gorsuch's dissent--albeit he swapped "chocolate-vanilla swirl" for Neapolitan.

With this point in mind, respondent's reading collapses.To see why, consider another example. Suppose you are a houseguest, and your host invites you to "help yourself to the chocolate or vanilla ice cream in the freezer." Upon opening the freezer, you find three tubs—vanilla, chocolate, and Neapolitan. For argument's sake, too, let's say the last tub also has a sticky note: "Do not eat without clear permission." Which ice cream can you take? If the host meant "or" exclusively, you may take either chocolate or vanilla, not both. If the host meant it inclusively, you may scoop some of each. In neither event, however, would you have permission to take the Neapolitan ice cream—especially given the cautionary note.

Another turn of phrase stuck out at oral argument. Justice Barrett observed that the phrase "other foreign or domestic governments" was "an attempt to cover the waterfront." This phrase refers to an effort to be thorough or comprehensive. There is also a famous song, titled "I Cover the Waterfront," which was performed by Billy Holiday, Frank Sinatra, and others. This idiom is especially fitting since Lac du Flambeau translates to Lake of Torches, and the Chippewa Indians are of Lake Superior.

And wouldn't you know it? This phrase made it into Footnote 7 of Justice Jackson's majority opinion, responding to Gorsuch's ice cream hypothetical:

For another, whereas the pairing of "foreign" and "domestic" often covers the waterfront, see supra, at 6, the dissent's hypothetical pairings do not have that same effect. And unlike animals (which need not be small or doglike) or ice creams (which need not be chocolate or vanilla), every government must be foreign or domestic to some degree; the question is just where on the spectrum it falls.

It has become fashionable to claim that Justice Jackson is influencing the other Justices. I've yet to see any actual evidence of this assertion. But at least here, Justice Barrett's phrasing during oral argument was transplanted directly into a pivotal footnote in the majority.

Speaking of nautical themes, a related phrase is "On the Waterfront," the title of the famous Eliza Kazan movie. I think Marlon Brando's famous advice should be heeded by the Justices who could have been contenders, but instead consistently underperform.

Norm McDonald, Carly Simon, Billy Holiday, and Eliza Kazan. Not a bad week for pop culture references. Now, onto Brackeen.