Justice Neil Gorsuch is a committed advocate of tribal rights
In a pair of opinions on Thursday, Justice Neil M. Gorsuch again showed that he is the staunchest supporter of Native American rights on the Supreme Court.
That’s not surprising to those who knew him when he served on the federal appeals court in Denver.
“He’s from Colorado,” he said John E Echohawk, executive director of the Native American Rights Fund. ‘He is the only Westerner on the field. He knows these problems. He knows these tribes.”
Justice Gorsuch voted in favor Thursday a 7-to-2 ruling rejecting constitutional challenges to the Indian Child Welfare Act, a 1978 law that sought to keep Native American children with their tribes. He joined Judge Amy Coney Barrett’s 34-page majority opinion and added 38 pages of his own, in a concurring opinion steeped in history and marked by blazing rhetoric.
“Often Indian tribes have come to this court seeking justice, only to leave with heads bowed and empty hands,” he wrote. “But that’s not because this court can’t bring them justice. Our Constitution reserves for the tribes a place—a permanent place—in the fabric of American life.”
Two of the court’s liberal members, Justices Sonia Sotomayor and Ketanji Brown Jackson, concurred with Judge Gorsuch’s most concurring opinion.
In a second case, on the applicability of the bankruptcy laws to Indian tribes, Judge Gorsuch was the only dissenter. Here too he took the long breath. “The text of the constitution – and two centuries of history and precedent – establish that tribes enjoy a unique status in our law,” he wrote.
Native American lawyers and scholars have noted Judge Gorsuch’s particular commitment to tribal rights.
“He understands what is at stake and takes tribal sovereignty seriously in a way that few judges in the court’s history have done,” he said. Elizabeth Hidalgo Reese, a professor of law at Stanford. “He seems to be principled in certain ways about things he cares about.”
Judge Gorsuch, the first of President Donald J. Trump’s three Supreme Court nominees, is known for his commitment to doctrines such as originalism and textualism, which have generally pushed the court to the right.
For example, he was in the majority in last semester’s cases abolition of the right to abortion, expanding gun rights, limiting efforts to tackle climate change And increasing the role by religion in public life.
In other cases, however, he has appealed to those same doctrines to carve his own path. His most notable majority views protected gay and transgender workers and the sovereignty of Native American tribes.
Judge Gorsuch’s recent opinions, and much of the rest of his jurisprudence, are characterized by a distinctive view of the law, one that sometimes combines sympathy for vulnerable litigants with adherence to formal legal doctrines regardless of the consequences.
And he’s perfectly willing to go it alone.
“He just doesn’t care at all what anyone else — his colleagues, the press, politicians — thinks,” he said Daniel Epps, a professor of law at Washington University in St. Louis.
In 2020, Judge Gorsuch entered the majority opinion a 5 to 4 decision state that much of eastern Oklahoma falls within Indian reservations.
It began with a memorable passage: “At the end of the Trail of Tears was a promise. Forced to leave their ancestral lands in Georgia and Alabama, the Creek Nation received assurances that their new lands in the West would be forever safe.
He was joined by what was then the court’s four-member liberal wing, including Judge Ruth Bader Ginsburg, who died a few months later.
After President Donald J. Trump appointed Judge Amy Coney Barrett to succeed Judge Ginsburg, the court reversed course and narrowed the 2020 decision to last year another 5-to-4 verdict. Judge Gorsuch wrote an angry dissent.
“Where this court once stood steadfast,” he wrote, “today it withers.”
In November, when the Supreme Court heard arguments in the Indian Child Welfare Act case, Judge Gorsuch questioned the challengers’ lawyers vigorously, with flashes of anger and frustration.
“That’s just not true,” he told one of them. To another, who had argued there were good reasons to doubt the law’s wisdom, he said “the policy arguments are better taken across the street,” referring to Congress.
His concurring opinion on Thursday recounted in ugly detail the brutal mistreatment of Native American children throughout the ages.
“In all its many forms, the dissolution of the Indian family has had devastating consequences for children and parents alike,” he wrote. “It has also posed an existential threat to the continued vitality of tribes — something many federal and state officials over the years have seen as a hallmark, not a flaw.”
He concluded his advice on a hopeful note. The law upheld by the court, he wrote, delivered on at least three promises: “the right of Indian parents to raise their families as they please; the right of Indian children to grow in their culture; and the right of Indian communities to resist disappearing into the twilight of history.”
“All that,” he wrote, “is in accordance with the original draft of the Constitution.”
Justice Gorsuch joined the Supreme Court in 2017, replacing Justice Antonin Scalia, who had died more than a year earlier. In the meantime, Senate Republicans blocked President Barack Obama’s nomination of Merrick B. Garland, then the Chief Justice of the U.S. Court of Appeals for the District of Columbia Circuit and now the Attorney General.
Judge Gorsuch had served on the 10th Circuit in Denver for more than a decade. He heard the news of Judge Scalia’s death in the middle of a ski slope.
“I immediately lost the breath I had left,” he said said in a speech two months later. “And I’m not ashamed to admit I couldn’t see the rest of the downhill because of the tears.”
On the Supreme Court, Justice Gorsuch has embraced his predecessor’s interpretive methodologies: originalism, which looks at the meaning of the constitution when it was passed, and textualism, which focuses on the words of federal statutes.
But there are more than a few areas where, using the same approach, the two men came to opposing conclusions. Justice Scalia entered the majority opinion in 1990 Department of Employment v. Smithstating that neutral and universal laws could not be challenged on the grounds that they violated First Amendment protections of the free exercise of religion.
Judge Gorsuch wants to reverse that decision. He joined in 2021 a concurring opinion of Judge Samuel A. Alito Jr. who said that in the clearest terms: “Smith had made the wrong decision. As long as it is on the books, it threatens a fundamental freedom. And while the precedent should not be lightly brushed aside, the court’s mistake in Smith must now be corrected.
Judge Scalia was not particularly sympathetic to Native American rights. By means of a reckoning, he voted for tribal interests 16 percent of the time during his 30 years on the Supreme Court. According to David E Wilkinsa professor at the University of Richmond, Justice Scalia was “one of the most rabidly anti-Indigenous judges” to ever sit in court.
The Smith decision involved Native Americans. Judge Scalia wrote for the majority that the First Amendment guarantee of the free exercise of religion did not protect two Native American Church members who were fired as drug counselors for using peyote during a religious ceremony.
By contrast, while on the appeals court, Justice Gorsuch reigned in 2014 that a Native American prisoner could sue for access to a sweat lodge, which Judge Gorsuch described as “a house of prayer and meditation”, under a federal law established after Smith.
“Trying to separate the sacred from the secular can be a tricky business — perhaps especially in a civil court whose warrant does not extend to divine matters,” he wrote.