Perhaps it's pointless to speculate. People attribute Justice Kennedy's sympathy for gay rights to his personal friendships, but that only raises the question of why he was open to such friendships. Why any of us develops the particular views we have is a complex and perhaps unanswerable question.
Prof. Dorf mixes in a bit of humility that is appreciated. It is an interesting game to try to speculate. We try to determine the mindset of people in various cases, including in historical studies.
[He doesn't bluntly say so, but his co-blogger is one person who emphasizes Kennedy's friendships. I heard the person argue same-sex marriage rights -- Kennedy was the fifth vote -- turned on that. But, it is not like Kennedy is only libertarian/liberal on that issue. It's a simplistic analysis of his viewpoint.]
But, we should be humble. At some point, we aren't quite sure about certain things. It is a good policy to determine what we are most clear about. What we can most agree upon. A narrower approach can be helpful and more productive. Sometimes, agreement won't be possible, even when it seems like it should be. This can be annoying but you do what you can.
Anyway, people try too hard with Gorsuch and other justices sometimes, and it is of limited value to debate them. Still, I noted in my commentary about the big Native American decision this week that I don't quite go along with Gorsuch, even when his opinions on the subject are liberal-minded. For instance, McGirt v. Oklahoma seemed a bit dubious to me (somehow a lot of people were wrong for around a hundred years?).
Mark Joseph Stern, the liberal-minded Slate Supreme Court analyst has a piece analyzing Gorsuch's Native American positions.
A through line of the justice’s work is the notion that bad things happen when the country steps out of line with the Constitution, while good things happen when it steps back into compliance.
What? Other justices don't care about the Constitution? Apparently, there is something special about what it says about Native Americans that explains his position. He is special since it doesn't seem like they were treated that well by many people early on, including members of the Supreme Court.
Stern argues:
The Constitution does command a certain measure of sovereignty and respect for tribes and their members; America’s brutal oppression of Native Americans represented a sharp break from the Framers’ intent.
Like what? The power to make treaties is cited. See, states interfered here, refusing to respect treaties formed between the national government under the Articles of Confederation. The Constitution does provide a stronger hand to the federal government. But, the Articles repeatedly protect the treaty power of the United States. For instance:
The United States, in Congress assembled, shall have the sole and exclusive right and power of determining on peace and war, except in the cases mentioned in the sixth article - of sending and receiving ambassadors - entering into treaties and alliances
There is nothing specifically special about Native Americans here. The Constitution provides a range of ways to provide more power to the federal government. Native Americans are barely mentioned, including saying "Indians not taxed" will not be counted for purposes of representation.
This suggests taxation would be a major way for Native Americans to be part of a sovereign community but what about if they paid some sort of duty on goods traded? Is this a form of "tax"? The provision by itself only tells us so much. Anyway, eventually, Native Americans as a whole were by statute declared to be American citizens at birth.
What about the treaty power? Does this not protect Native American sovereignty. Well, first, there remains a general power to breach treaties in certain respects, which applies to tribes and everyone else. Put that aside.
What about the Commerce Clause?! The clause lists states, foreign nations, and Indian tribes. The one express power (and it is part of a list of 17) bluntly says that a tribe is at least not necessarily a foreign nation. The provision gives Congress a lot of power over Native Americans. On the other hand, you can use the same clause (with others) to say the federal government has broad power over other things too. I noted that Justice Barrett's opinion in fact can be applied broadly there.
The "Framers' intent" regarding Native Americans is not some general benign one. They had various intents. The "not taxed" bit even implies that there is potential that Indians would eventually be part of the whole white (to be blunt here) political community. The idea (to cite Gorsuch) that Native Americans would just be sovereign as long as they all wished and be protected as such is just a tad ridiculously naive.
The Constitution says a lot of things. Dobbs is offensive to me because I think it protects a degree of personal sovereignty that includes reproductive liberty. Why does Gorsuch specifically get all eloquent with Native Americans but not the rights of women to control their bodies?
It isn't merely because of "Framers intent" or something. Don't be asinine. As Michael Dorf notes, it isn't just because he is a Westerner either. His education and early professional years were Eastern establishment. He worked during the Bush Administration, including supporting its strong executive power in the "war on terror." People found that sort of thing a violation of our constitutional values too.
To the degree I would wish to assume, I would figure that Native Americans are a sort of safe somewhat mythical story for Gorsuch, a way to support his own version of a limited national government. Being from the West, his mother heading the EPA, and being a judge among Native tribes led him to be more likely to be sympathetic. But, it is not like others from that milieu with "originalist" views necessarily join him.
Gorsuch is not really a special snowflake here generally. You can find conservatives on the courts of appeal who have good stances on certain subjects. We are probably partially seeing a certain generational thing here on how conservatives are seeing things. We will see certain differences over time (sigh) in how Gorsuch, Kavanaugh, and Barrett see things. There are differences among conservatives on a variety of issues.
And his singular commitment to Native justice is one of the most encouraging developments at the Supreme Court so far this century.
"Native justice" here has been shown to include inhabitants of the territories, at least to some extent. He has argued that the Insular Cases were a grave injustice. Again, this didn't stop him from helping the Bush Administration, and I don't know of any opposition from him on the treatment of people in Gitmo or the like. Anyway, a nod to the book Island Treasures, children/young adult-level account of growing up in Cuba.
I appreciate that Neil Gorsuch has a commitment to Native Americans, which is a nice surprise on some level, but how "encouraging" is it really? Justices repeatedly have their own idiosyncratic positions. Justice Byron White was conservative on some issues, practical, and even liberal on others. I'll grant that justices tend to be more in boxes these days.
Still, Gorsuch brings with him (as noted in that article) a lot of baggage. His Native American jurisprudence reflects some of this by having a strident "just so" true believer vibe. It is not even in "this century" totally unique. Barrett might have a bit of it (there are examples where she joined with the liberals). Scalia had his moments (disclosure laws, DNA swabs).
Ramos v. Louisiana held that the Sixth Amendment right to a jury trial, as incorporated against the states, requires a unanimous verdict to convict a defendant of a serious offense. Gorsuch wrote for a 6-3 Court with Kavanaugh concurring to emphasize the racial equality issues at hand. Who dissented? Alito (author) with Roberts and Kagan. It is striking in fact since I think even on precedent grounds, Kagan could have found a limited way to go along. But, she was consistent and did not write.
I respect Gorsuch's position on Native American rights. We should be able to have complex positions that make us not always go along with our usual allies. I would say "calm down" when this is taken too far, including some idea that he is some special snowflake about "Framers' intent." Originalism again shows its siren's song, it is ideal here since it is "done right."
Native Americans should be treated with respect. They have had a harsh history (along with others) and Gorsuch's voice as a whole is appreciated. But, the text and history alone do not settle these questions. His position is not compelled by either. It is a judgment factoring in various things, imperfect human experience in the current day, just like other justices are doing.
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