Thomas and Alito: The Anti-Gorsuchs on Tribal Rights

In the wake of today's blockbuster decision in Haaland v. Brackeen (upholding the Indian Child Welfare Act against constitutional challenge), and somewhat-less blockbuster decision in Lac du Flambeau Band of Lake Superior Chippewa Indians v. Coughlin (holding that tribal sovereign immunity is abrogated by the bankruptcy code), Josh Blackman observes that Justice Gorsuch appears to have ruled in favor of tribal parties in every case he's heard while on the Supreme Court. There's one case on that list that is arguably a bit dicey -- Yellen v. Confederated Tribes of Chehalis Reservation -- but by and large Justice Gorsuch's strong affinity for Indian tribes and tribal rights is very well-known.

Blackman thus asks whether Gorsuch has "ever written an opinion that ruled against an Indian Tribe or Member?" It's an interesting question. But reading Blackman's list, I noticed that in every case where Gorsuch ruled in favor of tribes, Justices Alito and Thomas were on the opposing side. He even recognizes that Gorsuch "is consistently on the other side of Justices Thomas and Alito" on these issues. Gorsuch has never written a unanimous opinion on a tribal rights question because in every case (at least) Thomas and Alito have voted against the tribes. Just as Gorsuch has apparently always voted on the side of tribal interests, it appears that, at least during Justice Gorsuch's tenure on the Court, Thomas and Alito have never voted in favor of tribal interests.

This is a striking streak -- maybe even more so than Gorsuch's 1.000 batting average. Obviously, Alito and Thomas don't have any general negative view towards Gorsuch's jurisprudential outlook -- they're aligned most of the time. And, whether you agree with Gorsuch or not, it's hard to gainsay that he is the foremost subject-matter expert on Indian law on the Supreme Court. So it's surprising that Alito and Thomas have never been willing to sign on to one of his opinions. When I was on the Eighth Circuit, my Judge (the late Diana E. Murphy) was generally recognized as one of the court's Indian law specialists, and so would typically get some amount of deference from her fellow judges on those questions -- not always, and not blindly, but it was there. Yet despite general ideological concurrence, and despite specific reasons to know that Gorsuch is the Supreme Court's Indian law specialist, Alito and Thomas have nonetheless been as implacable foes of tribal rights as Gorsuch has been a friend.

So again, asking whether Gorsuch has "ever written an opinion that ruled against an Indian Tribe or Member" is an interesting question. But still, I think there's also a corollary question to Blackman's. "When is the last time (if ever?) that Alito or Thomas have written an opinion ruling for an Indian Tribe or Member?" Thomas and Alito have been on the Court longer than Gorsuch has, so their record stretches back further than his tenure. But if we wonder as to why Gorsuch is so friendly to tribes and tribal interests, we perhaps should be equally curious as to why Thomas and Alito are so hostile to them.