SCOTUS 101: The People’s Justice—Judge Thapar on Justice Thomas


SCOTUS 101: The People’s Justice—Judge Thapar on Justice Thomas

Jun 23, 2023 13 min read

Commentary By

GianCarlo Canaparo @GCCanaparo

Senior Legal Fellow, Edwin Meese III Center

Zack Smith @tzsmith

Senior Legal Fellow, Meese Center for Legal Studies

Rudy Sulgan/Getty Images

It’s the second-to-last week of the term, and the Court handed down its big immigration case, United States v. Texas, another case involving Indian tribes, and cases involving murder-for-hire, a fantastical Russian financial fraud, and a scam to trick people into immigrating illegally. Your hosts discuss those cases, and then GianCarlo interviews Sixth Circuit Judge Amul Thapar about his new book The People’s Justice: Clarence Thomas and the Constitutional Stories that Define Him. Judge Thapar has some homework for listeners, so pay attention! Last up, Zack quizzes GianCarlo with trivia about unusual confirmations.

GianCarlo Canaparo: Welcome back to SCOTUS 101, both listeners and Zack, who was out last week. Zack, tell us about this week at the Supreme Court.

Zack Smith: Well, it’s good to be back, GC. We have two, maybe three weeks, left in this term. We have a bunch of opinions left to go, and there are several significant ones that are still outstanding. So without further ado, GC, let’s get into the opinions this week.

Canaparo: All right. Starting with Thursday’s opinions, the biggest decision was Haaland versus Brackeen. This case concerns the Indian Child Welfare Act, and in a seven to two decision by Justice Barrett, the court rejected a multi-pronged attack on that statute. By way of background, the Indian Child Welfare Act requires, among other things, that state courts place Indian children with Indian caregivers, if one’s available, even if the child is already living with a non-Indian family, even if the child’s birth parents would like the child to stay there, and even if it would be in the child’s best interest not to be placed with an Indian family. This might strike you as strange. After all, shouldn’t the child’s best interests matter above anything else? But the act specifically subordinates an Indian child’s personal interests to the interests of the Indian tribes, in preserving their racial and cultural homogeneity. So you can see the equal protection problem from a mile away, and the challenges here arose from three separate child custody proceedings, involving Indian children.

The plaintiffs were non-Indian families who want to adopt or foster Indian children and the state of Texas. They raised four arguments against the act, all of which the court rejected for one reason or another. First, they said that Congress lacked the power to enact the law. And second, that several of its provisions violate the 10th Amendment, by commandeering state child welfare laws, courts, and the services that help them. The court rejected all of those arguments, concluding that Congress’ power to legislate, with respect to the Indian tribes, is plenary and exclusive, and Congress has the power to force state courts to enforce federal law. Third, the challengers argued that the act’s obvious subordination of individual rights to collective racial interests violated the Equal Protection Clause. And fourth, they argued that parts of the act violate the nondelegation doctrine. The court rejected both of these arguments for lack of standing.

It held that the harm that would-be parents suffer would not be redressable by an injunction blocking the federal defendants from enforcing the act, because it is state courts and state officials that do so. And it held that Texas has no standing, because it has neither equal protection rights of its own, nor the ability to represent the equal protection rights of its citizens. And it didn’t suffer any other sort of concrete harm. The takeaway from all this is that the Indian Child Welfare Act lives on, but the equal protection and nondelegation challenges are still live issues, provided plaintiffs withstanding can make them. Now, Justice Gorsuch, joined in part by Justices Sotomayor and Jackson, concurred to add some historical context about why the Indian Child Welfare Act is within Congress’ power. Justice Kavanaugh concurred to say that the equal protection issue is serious and should be raised by a plaintiff withstanding. And I quote from his opinion, “For example, a prospective foster or adoptive parent or child in a case arising out of a state court foster care or adoption proceeding.”

Last up, Justice Thomas, joined by Justice Alito, dissented, arguing that, and I quote, “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.” In his view, nothing authorizes the Indian Child Welfare Act. “The Indian Commerce Clause, for instance, is about commerce, not children,” he said, “And the Indian Child Welfare Act is not based on any treaty, such as the Treaty Clause applies. And finally, the foreign affairs powers inherent in the federal government have no application to regulating the domestic child custody proceedings of citizens living within the jurisdiction of the states.”

Smith: It’s a very interesting case, and Professor Rob Natelson has written extensively about this case and many of the issues brought up by it. And so, if you want to learn more and take a really deep dive into some of the issues swirling around this case, I would highly recommend a lot of his scholarship on this issue. Next up was Lac du Flambeau Band of Lake Superior Chippewa Indians versus Coughlin. This was another tribal related case, and it was an eight to one decision by Justice Jackson, where the court held that the US Bankruptcy Code abrogates the sovereign immunity of all governments, including the sovereign immunity of Indian tribes. Coughlin had filed for bankruptcy before paying off a loan from the petitioner, which was an entity of a federally recognized tribe. The tribe continued to try to collect on the loan, even though, under the bankruptcy code, it had to stop the collection efforts after Coughlin declared bankruptcy.

The tribe argued that it wasn’t subject to the code’s automatic stay provision, because it had sovereign immunity. The majority disagreed, saying that the bankruptcy code’s plain text abrogates the sovereign immunity of a governmental unit, which includes a catchall definition applying to all “other foreign or domestic governments.” The court found this definition strikingly broad and all encompassing and therefore, a clear abrogation of tribal sovereign immunity. Justice Thomas concurred in the judgment, only to reiterate a point he has made before, that a tribe’s sovereign immunity does not extend to suits arising from the tribe’s commercial activities outside of their territory, which was the case with the loan here. Justice Gorsuch dissented, because his rule is Indian tribes always get what they want, even if it’s two thirds of Oklahoma. Now, I’m just kidding, sort of. But in his view, the broad definition of governmental unit just wasn’t broad enough to counterbalance the “unique status in our law,” that he believes Indian tribes have. And I actually wrote a piece about this case before the opinion came out, and we’ll include a link in the show notes, if you want to learn more about this case there.

Canaparo: And the last opinion from Thursday was Smith versus United States. This was a unanimous decision by Justice Alito, where the court held that, when a conviction is reversed because of an improper venue, retrial in the proper venue is the right remedy, not dismissal of all the charges. So Timothy Smith was convicted in the Northern District of Florida of stealing trade secrets from a website based in the Southern District of Alabama, whose servers were located in the Middle District of Florida. The 11th Circuit held that venue in the Northern District of Florida was inappropriate, and Smith said that, as a result, the charges ought to be dismissed.

The government said, “No, we should get to retry you in the right venue.” And the court agreed with the government. It said that retrial was the right remedy for all other sorts of procedural violations, and nothing in the Constitution makes venue problems special. What’s more, there was no double jeopardy concern, because a decision on venue is fundamentally different from a verdict of acquittal. So poor Mr. Smith, who thought he had a get out of jail free card, is not out of jail, but he is out of luck.

Smith: And our colleagues, Paul Larkin and Cully Stimson actually wrote a very interesting piece about this case, GC. And so, we’ll include a link in the show notes to that piece as well, for folks who want to do additional reading on this case too. On Friday, we also got Polansky versus Executive Health Resources. This was an eight to one opinion by Justice Kagan. Justice Thomas was the lone dissenter, and it involves a qui tam issue. Now, before we get into the details of this case, let me explain what qui tam cases are, in case folks aren’t familiar. These are actions where private parties can act on behalf of the government to enforce certain statutory regimes, when the government chooses not to do so itself. The reason they do this is because qui tam litigants can get all or some of the money that the government would be entitled through government, if the government itself brought the suit.

Now, the government typically has the right to intervene in a qui tam suit and take it over from the private lawyers, if it wants to. So with this background in mind, basically what happened here was that a private litigant brought a qui tam suit. The government intervened late in the proceedings and moved to dismiss the case. The private litigant did not want the case dismissed, and it opposed the government’s motion. The Supreme Court though sided with the government, holding that, as long as the government intervenes in a case, it can move to dismiss that case. Justice Thomas dissented, arguing that, because the government moved to intervene so late, it lost the right to dismiss the case. He also argued that qui tam suits undermine the constitutional requirements that executive power, the power to enforce the laws, vest in the President alone and not in private litigants.

Canaparo: And last up was Lora versus the United States. This was another unanimous decision by Justice Jackson, holding that the requirements of one subsection of a criminal statute do not apply to another subsection of the same statute, without a clear statutory mandate that it does. So the particular statute at issue here is 18 US Code section 924. One part of that law, subsection C, makes it a crime to use a firearm while committing a drug offense, and it says that any sentence imposed for that firearm offense cannot run concurrently with any other sentences. Now, another subsection of 924, subsection J, makes it a crime to kill someone with a firearm, while violating subsection C. So you have the possession, and you have the killing. Subsection J, unlike subsection C, does not say anything about whether a sentence under subsection J should run concurrently or consecutively. The government took the position that, because subsection J refers to subsection C, sentences imposed for violating subsection J must also run consecutively. The Supreme Court disagreed, writing that subsection J references subsection C, only with respect to the elements, but not the penalties for the crimes.

Smith: And we’re still waiting on a few big opinions to come down, such as 303 Creative and the Harvard and UNC cases, as well as several others too. So I think we’ll have a lot to look forward to over the next few weeks.

Canaparo: We certainly will, and with all the opinions we got this week, we don’t have time for an interview, so we will do trivia right after this.

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Smith: All right, GC, you had a reprieve from trivia last week, so I’ve prepared a couple of good questions just for you. And I thought, today, we could focus on just how well you know your Supreme Court history. Are you ready to go?

Canaparo: I think so. That sounds like a broad topic, but let’s see how I do.

Smith: It is a broad topic, but I have faith. I have faith. Now, GC, I’m sure you know the Supreme Court Building here in Washington, DC was constructed in 1935, but before its construction, the Supreme Court met in what two other American cities?

Canaparo: Oh, that’s interesting. I assume Philadelphia.

Smith: Yep.

Canaparo: I am not actually sure.

Smith: Well, the other one would be New York, our nation’s two previous capitals, before...

Canaparo: Oh, right. I forget that about New York.

Smith: Before Washington became our seat of government. So they met in New York and Philadelphia. All right, well done, GC. All right, let’s talk a little substantive due process. My spine shivers just saying it. Such an oxymoron. But setting that aside, I think we can agree that substantive due process has always been a sticky wicket for conservative legal scholars, and rightly so. In a case dating back to 1856, which is often credited with giving birth to this idea of substantive due process, it’s Murray’s Lessee versus Hoboken Land & Improvement Company, Justice Benjamin Curtis delivered the opinion for unanimous court. He wrote that the Constitution’s words “due process of law” were intended to convey the same meaning as the words “by the law of the land” in what other historically famous and historically significant document?

Canaparo: This, of course, is Magna Carta, from which we took, in fact, we get our Due Process Clause almost directly from that document, which was promulgated in 1215. Provides that no free man shall be seized or imprisoned or have his rights taken away or his possessions, et cetera, except by, and I think the phrase is “lawful judgment of his equals” or “by the law of the land.”

Smith: Well done, GC. You hit the nail right on the head. All right. Next up, let’s move from 1215 and Magna Carta to 1937.

Canaparo: We’re jumping all over the place.

Smith: A little bit. Just what’s a couple centuries here and there, and more than that, actually. All right. But let’s fast forward to 1937 with President Franklin D. Roosevelt, when he proposed the Judicial Procedures Reform Bill. Now, this is a very infamous bill, one I’m sure you’ll be familiar with, even if you didn’t know the name of it. So essentially, what did this bill attempt to do?

Canaparo: So I actually have never heard the name of the bill, but I assume what you’re talking about is his court packing plan.

Smith: Yeah, that’s exactly right. This was Roosevelt’s proposal to increase the number of justices, and fortunately, this law was not passed. And in fact, it received significant blowback, even from members of his own party. All right, let’s fast forward again to the late 1960s and the early 1970s when Richard Nixon, our 37th President, was serving, during his presidency, which lasted from 1969 to 1974, the Supreme Court issued a landmark decision, New York Times Company versus United States, which is often referred to as the Pentagon Papers Case. Essentially, what was the holding of that case, GC?

Canaparo: Yeah, this is a big First Amendment free press case. The court held that the freedom of the press protected the New York Times in their decision to publish the Pentagon Papers and denied to President Nixon the power to impose a prior restraint on the newspaper, absent, I think, the standard was sufficient evidence that the publication would cause grave and irreparable danger to the nation, I think, was the test.

Smith: You are on fire today, GC. That’s exactly right. Well done. All right. I have a final question for you. President John Adams once said, “My gift of John Marshall to the people of the United States was the proudest act of my life.” Marshall served as Chief Justice of the Supreme Court from 1801 to 1835, but one of his first official acts was to deliver the Oath of Presidential Office to what famous cousin of his in 1801?

Canaparo: Oh. Well, so of course, 1801 would be Thomas Jefferson. I did not know that Thomas Jefferson and John Marshall were cousins.

Smith: Yeah, they were. They were cousins, obviously on opposite ends of the then political spectrum, but they were. Small world indeed. Well, that’s it for today. Well done, GC.

Canaparo: Thank you, Zack.

Smith: And thank you to everyone for listening to SCOTUS 101. Please be sure to subscribe on Spotify, Apple Podcasts, or wherever else you listen.

Canaparo: You can follow us on Twitter at SCOTUS 101, and email us at [email protected], with your questions, comments, or ideas for future shows.

SCOTUS 101 is brought to you by more than half a million members of The Heritage Foundation, executive produced by GianCarlo Canaparo and Zack Smith, sound designed by Lauren EvansMark Guiney, and John Popp