Justice Neil M. Gorsuch again proved himself to be the fiercest advocate of Native American rights on the Supreme Court in a pair of opinions Thursday.
This comes as no surprise to people who knew him when he served on the federal appeals court in Denver.
« It’s from Colorado, » he said John E. Echohawk, executive director of the Native American Rights Fund. “He is the only Westerner on the pitch. He knows these problems. He knows these tribes.
Justice Gorsuch voted with a majority on 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 her own, in a concurring opinion steeped in history and marked by fiery rhetoric.
« Often, Native American tribes have come to this courthouse demanding justice only to walk away with heads bowed and empty handed, » he wrote. “But it’s not because this court has no justice to offer them. Our Constitution reserves for tribes a place — an enduring place — in the fabric of American life. »
Two of the court’s liberal members, Justices Sonia Sotomayor and Ketanji Brown Jackson, joined Justice Gorsuch’s largely concurring opinion.
In a second caseAs to the applicability of the bankruptcy laws to Indian tribes, Justice Gorsuch was the only dissenter. Here too he had a long vision. « 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 dedication to tribal rights.
« He understands what is at stake and takes tribal sovereignty seriously as very few justices have in the history of the court, » he said Elizabeth Hidalgo Reese, professor of law at Stanford. « He seems to be principled in certain ways about the things he cares about. »
Justice 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.
It was in the majority, for example, in the cases of the last legislature eliminate the right to abortion, expand gun rights, limit efforts to address climate change AND expanding the role From religion in public life.
In other cases, however, he has called upon those same doctrines to forge his own path. Most notable majority views of him protected gay and transgender workers and the sovereignty of Native American tribes.
Justice Gorsuch’s recent opinions, and much of the rest of his jurisprudence, are marked by a distinctive view of the law, which sometimes blends sympathy for vulnerable litigants with adherence to formal legal doctrines, whatever the consequences. .
And he’s perfectly willing to do it himself.
« He just doesn’t care at all what other people think – his colleagues, the press, politicians -, » she said. Daniel Epps, law professor at Washington University in St. Louis.
In 2020, Justice Gorsuch wrote the majority opinion in a 5 to 4 decision declaring much of eastern Oklahoma to be Indian reservations.
It began with a memorable passage: “At the end of the Path of Tears was a promise. Forced from their ancestral homelands in Georgia and Alabama, the Creek Nation received assurances that their new homelands in the West would be secure forever.
He was joined by what was then the liberal wing of four court members, including Justice Ruth Bader Ginsburg, who died a few months later.
After President Donald J. Trump nominated Judge Amy Coney Barrett to succeed Justice Ginsburg, the court reversed course, narrowing the 2020 decision last year in another sentence 5 to 4. Justice Gorsuch wrote an angry dissent.
« Where this court once stood, » he wrote, « now withers away. »
In November, when the Supreme Court heard discussions in the Indian Child Welfare Act case, Judge Gorsuch vigorously cross-examined the challengers’ lawyers, with flashes of anger and frustration.
« It’s just not true, » she told one. To another, who had argued that there were sound reasons to doubt the wisdom of the law, he said, « Political topics might be better addressed across the street, » referring to Congress.
His concurring opinion on Thursday detailed the cruel mistreatment of Native American children over the centuries.
« In all its many forms, the dissolution of the Indian family has had devastating effects on both children and parents, » he wrote. « It also posed an existential threat to the continued viability of the tribes — something many federal and state officials over the years have seen as a feature, not a flaw. »
He ended his review on a hopeful note. The law upheld by the court, he wrote, upheld at least three promises: “the right of Indian parents to raise their families as they please; the right of Indian children to grow up in their culture; and the right of Indian communities to resist fading in the twilight of history.
« All of this, » he wrote, « is in keeping with the original design of the Constitution. »
Justice Gorsuch joined the Supreme Court in 2017, replacing Justice Antonin Scalia, who died more than a year earlier. Meanwhile, Senate Republicans blocked President Barack Obama’s nomination of Merrick B. Garland, then the chief judge of the United States Court of Appeals for the District of Columbia Circuit and now the attorney general.
Judge Gorsuch had served on the Tenth Circuit in Denver for more than a decade. He heard the news of Judge Scalia’s death halfway down a ski slope.
“I immediately lost what breath I had left,” she said he said in a speech two months later. « And I’m not embarrassed to admit that I couldn’t see the rest of the way down the mountain in tears. »
On the Supreme Court, Justice Gorsuch embraced his predecessor’s interpretive methodologies of originalism, which looks at what the Constitution meant when it was adopted, and textualism, which focuses on the words of federal statutes.
But there are quite a few areas where the two men, using the same approaches, have come to opposite conclusions. Justice Scalia wrote the majority opinion in 1990 in Employment Division vs. Smithwhich stated that neutral, generally applicable laws could not be challenged as violating the First Amendment protection of the free exercise of religion.
Judge Gorsuch wants to reverse that decision. In 2021 he joined a concurring opinion by Judge Samuel A. Alito Jr. who put it in the simplest terms: “Smith was decided incorrectly. As long as he stays on the books, he threatens a fundamental freedom. And while the precedent shouldn’t be dismissed lightly, the court’s error in Smith should now be corrected.
Justice Scalia was not particularly sympathetic to Native American rights. From a reckoning, voted in favor of tribal interests 16% of the time in his 30 years on the Supreme Court. Second David E. Wilkinsprofessor at the University of Richmond, Justice Scalia he was « one of the most rabidly anti-Native judges » to ever serve on the court.
Smith’s decision involved Native Americans. Writing for the majority, Justice Scalia said the First Amendment guarantee of the free exercise of religion did not protect two Native American Church members fired from their jobs as drug counselors for taking peyote in a religious ceremony.
In contrast, while in the appellate court, Judge Gorsuch in 2014 he established that a Native American prisoner could pursue a lawsuit for access to a sweat lodge, which Justice Gorsuch described as « a house of prayer and meditation, » under a federal law issued after Smith.
« Trying to separate the sacred from the secular can be a tricky business, perhaps especially for a civil court whose remit does not extend to divine matters, » he wrote.