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.

The Intolerance of Being Unhappy When Extremists Succeed

There's an emergent line I'm seeing from the nationalist-conservative right, complaining about how, as their practical power increases, they and their ideas are no longer looked upon with the same degree of affability as when they were fringe activists chirping at the margins. Adam Mortara put it as follows after he and Jonathan Mitchell, architect of Texas' SB8 and some of the most radical anti-abortion pushes in the country, received an (allegedly) chilly reception by a liberal former mentor.*

“It was hurtful . . . and eye-opening,” Mortara said. “You’re fine when you’re just a yappy little dog that can’t bite. But, if you grow up to be a big dog that can actually do stuff, then you’re probably going to be put down.”

Justice Alito said something similar in his whine-terview in the Wall Street Journal last week -- he alleged that he's really no different than Antonin Scalia, but Scalia was tolerated by liberal elites because he was mostly in dissent. Now that Justice Alito commands a majority, things hit different.

"When you're in dissent," Justice Alito observes, "well, his ideas were amusing and interesting. He spoke at a lot of law schools and he was honored at law schools, but he wasn't a threat, because those views were not prevailing on issues that really hit home."

This line is presented as some sort of gotcha to the liberals. "Oh, you tolerated us when our ideas were basically just fascinating thought experiments, but now that we're winning it's dangerous." To which I say: yes! That's how it works! 

The whole point of liberal free speech commitments is that there is a sizeable gap between "views one is willing to consider and debate" and "views which it would be good, or even acceptable, to prevail in political life." We don't limit our consideration only to those positions which we're willing to endorse on-the-merits; which means that there is no conflict between engaging in such consideration in the abstract and being appalled when certain views actually start winning the day in "real" politics. The "gotcha" completely misunderstands the point of what liberal tolerance in the context of an abstract intellectual discussion is supposed to signify, or commit to.

For example, it is entirely plausible that one might assign, in a political theory class, works by Lenin, and consider/debate them in the classroom context. That's perfectly appropriate. But if the Leninists actually start seizing political power and instituting the purges, that would be bad! And if they said, "Oh, it was fine to debate our ideas in the classroom, but now that we're actually in charge and establishing gulags you have a problem with it," well, yeah, I do! Clearly! And I can think the same thing of compulsory pregnancy and forced childbirth. As a professor, it is important to debate these questions. But the actual political reality of it is catastrophic, and it's fine to say so.

It is not a failure of liberal tolerance to be unhappy when illiberal authoritarianism is on the march. A willingness to debate and consider these views as abstract intellectual exercises does not make said unhappiness hypocrisy. This isn't that complicated.

* Full disclosure: the mentor in question was David Strauss, who was my mentor in law school as well. I also got to know Mitchell when I was a law student, and can attest that he is a personally very pleasant person to interact with in addition to possessing a formidable intellect. Anyone who knows Professor Strauss is well aware of his commitment to nurturing and supporting law students from a range of different ideological backgrounds, and so I have no doubt he is genuine in feeling hurt that Mitchell has used his prodigious legal talents in service of dangerous, even lawless, public initiatives.

The Lawlessness is the Point: On Alito and Judicial Illegitimacy

"The Supreme Court," the old saw goes, "is not higher because it is right. It is right solely because it is higher."

The idea behind this aphorism is simple: while practically speaking we must have some actor with buck-stops-here final authority to interpret the law, that the nine justices of the Supreme Court occupy that position in no way suggests that they have some special insight or knowledge about the law that goes beyond that held by the average J.D.-holding-Joe. It is mostly a matter of happenstance that the sputtering machine of our constitutional order happened to spit out these nine in particular. There are any number of lawyers and legal professionals who could do as well or better at the task. 

When Ilya Shapiro infamously said that any nomination short of Sri Srinivasan to the Supreme Court would necessarily be one given to a "lesser Black woman" he was -- beyond the obvious racism -- making this mistake. The idea that there is some unified ordinal ranking we can give of all lawyers and judges, such that we can say with confidence this person is the "best" candidate to be a Supreme Court Justice, is fanciful. The idea that if such a ranking were possible, these nine individuals would rank #1-9 is even more facile.

I thought about this when reading an interview Justice Alito recently did with the Wall Street Journal, which broadly tackled the question of the Supreme Court's declining legitimacy, framed around the cavalcade of unpopular right-wing rulings that have been de rigueur for the Supreme Court over the past few years. In his inimitable style -- nobody can match his combination of sneer and self-pity -- Justice Alito laid blame for the Supreme Court's legitimacy crisis on everybody but him and his faction. It's the media, it's the Democrats, it's the legal community writ large. It has nothing to do with the content of the decisions. It's a wide-ranging conspiracy depriving them of their just public adulation.

At one level, this is little more than Alito reflecting the ideology of his tribe. Nothing unites the contemporary right more than the complete abdication of personal responsibility. It's always someone else's fault. They are but helpless atoms, involuntarily reacting to the jostlings of the universe.

But I particularly want to zero in on his complaint that the broader community is not coming to the Court's defense:

"And nobody, practically nobody, is defending us. The idea has always been that judges are not supposed to respond to criticisms, but if the courts are being unfairly attacked, the organized bar will come to their defense." Instead, "if anything, they've participated to some degree in these attacks."

This discussion, again, is framed around the Court issuing repeated unpopular decisions. Certainly, it is the case that sometimes judges are obligated to hand down rulings they know will be unpopular. An unpopular ruling is not, on its own, a marker of illegitimacy. That said, in my Sadomasochistic Judging article I observed that it's too easy for judges to swing out to the other extreme, and begin viewing their unpopularity as a marker of legitimacy -- they know they're right by how much they're hated. If good judges sometimes have to do unpopular things, then a judge who's always doing unpopular things must be a great judge! Who can argue with that logic?

Nonetheless, I don't disagree that among the duties of the bar is, where appropriate, to remind the public that judges sometimes have to issue decisions that they know will be unpopular but which are legally correct. And, as Justice Alito alludes to, historically, the bar has fulfilled that obligation and offered those explanations.

Which might be taken to suggest that, if these defenses are not on offer today, it's because the bar today does not see what's going on at the Supreme Court as unfair attacks stemming from a few unpopular rulings.

Indeed, it's noticeable that the criticism of the behavior of the judiciary isn't just stemming from the highest-profile, hot-button issues. There are increasingly dire complaints from specialists in the more "boring" sectors of law -- administrative law, standing doctrine, remedies -- that things are getting out of control, that the Supreme Court (and some lower court wannabes) are blowing past longstanding doctrinal principles in service of results-oriented judging in service of right-wing extremism. The era of conservative legal formalism is over. The stampede of cases come from every quarter and every issue -- guns, abortion, voting rights, religious freedom, gerrymandering, racism, environmental protection. And what unifies the conservative faction's voting pattern in those cases isn't textualism, or originalism, or precedent, or prudence, or deference to democracy, or professional consensus. The best -- not perfect, but best -- way to predict what the Court will do in nearly any legal arena is to ask "what do Republicans want."

The legal community, as Justice Alito says, may be obligated to defend the Court from unfair attacks. It is under no similar obligation to defend the Court from attacks it thinks are entirely fair.  The most consilient explanation for why the bar is withholding defenses it has historically proffered in circumstances of mere political unpopularity is that it does not identify the problem as political unpopularity; it has judged that the Court really is deviating increasingly sharply from basic rule of law principles in service of sloppy, results-oriented right-wing caprice.

A modest Court would take this reaction from the bar as a warning. Recognizing that it does not have a monopoly on, or even a superior vantage towards, legal truth, it would take very seriously indications that its peers in the legal community think it is going astray. By design, the Court has few formal guardrails that prevent it from simply becoming a blunt instrument of factional caprice. The collective feedback of the legal community is an informal mechanism for assessing the risk. When the bar is generally saying "look, we understand people might disagree with this decision, but sometimes unpopular decisions are part of a functioning legal system", that's a sign things are healthy. When the bar no longer feels capable of credibly making that apologia, that's a sign of rot. And in that register -- the register of professional assessment -- the Court cannot lay claim to special prerogatives because it is "higher". The Court is not necessarily right just because it is higher, and should take a long and deep pause if its professional peers are increasingly emphatic about how wrong it is.

But this Court is not modest. If the bar no longer has confidence in judicial legitimacy, then it's the bar children who are wrong. 

One can, of course, explain all of this away by deciding that the entirety of the federal bar has suddenly and en masse decided to abandon its historic commitment to American legal institutions in favor of blinkered ideological partisanship. But every bit of political theory and common sense we possess suggests that we're seeing the natural results of six individuals with life tenure and virtually nothing in the way of formal checks on their authority becoming power-drunk. 

It is among the prerogatives of that drunken, unfettered power that Justice Alito does not need to be "popular" to continue to impose his personal will onto society. Formally speaking, the bar can scream as loud as it wants that what he's doing is not normal, and is not compatible with the professional consensus on what the law is. Indeed, at one level, I think that -- protestations notwithstanding -- the lawlessness is the point. Judges are specialists masquerading as generalists; there might be a few issues where they really do know more than the rest of us, but most legal cases turn on doctrines that judges know virtually nothing about until the minute they open the first brief. But if one holds the legal community in the sort of open contempt that Justice Alito clearly does, there is a sort of thrill in defying of them -- of making it painfully clear that you do not care and it does not matter what the legal community say the rules are in a given case. L'etat, c'est moi. I decide what the law is.

It is the hallmark of an abuser, though, that they simultaneously thrill in degrading their victims and demand their victims consent to the abuse. For all that he enjoys gleefully soaring beyond the confines of legal professionalism, Justice Alito also insists that the legal profession owes him supplication. It's not enough to obey if we don't also recognize that he's right to do what he does to us. In this way, the aforementioned "thrill" is something of a lie Alito tells to himself. He does care and it does matter that the legal community thinks that he's a hack. I'm not saying it'd be better if he truly didn't care. But he does care. He's livid about it.

What Justice Alito wants is a contradiction -- he wants to bludgeon the legal community into freely accepting his preeminence. It's not enough for them to recognize him as higher, they have to recognize that he's right, and the beatings will continue until the morale improves. But this sort of "consent" -- recognition that the Court is right in what it says -- is not one the Court is entitled merely because it is "higher". The people -- whether the people of the United States as a whole or the legal community in particular -- may have to obey the Supreme Court. We do not have to like the Supreme Court. And if it is to be viewed as more than the capricious whims of six radical in robes, that is a public perception it must earn; it is not an entitlement.

North Carolina's Prison Minyan Requirement

Eugene Volokh points to an interesting case, Ben-Levi v. Brown, which challenged North Carolina prison regulations governing religious study. North Carolina generally allows group religious study by its inmates, but for Jews it requires either a minyan (ten adult male Jews) or the presence of a Rabbi. As one can imagine, either can be difficult to obtain in North Carolina penitentiaries, and Ben-Levi sued complaining of a First Amendment violation.

Like Professor Volokh (and Justice Alito), it seems to me that this is a clear Free Exercise violation. The state of North Carolina has no business telling Jews how they can and cannot practice Judaism. No doubt for many Jews the minyan requirement is a prerequisite to observing certain religious rites. But it is up to the Jew in question, not the state, to determine whether and how that rule applies to their individual circumstances. That's the essence of church/state separation: the state has no business interjecting itself into questions of theology. A general policy restricting group religious study (North Carolina mentioned a concern about it becoming a cloak for gang meetings) might present a tougher case, but there is no valid argument I can see for creating a specially restrictive rule for Jews -- even (especially) one based on North Carolina's interpretation of Jewish religious doctrine.

Unfortunately, the Supreme Court declined to hear the case (over a dissent by Justice Alito). Note that such a decision, while upholding the lower court rejection of Ben-Levi's claim, does not itself establish any precedent. Far more cases are appealed to the Supreme Court than it elects to hear, so one should be very cautious about reading too much into it. But a legitimate tsk-tsk can go out to the District Court and Fourth Circuit, who seem to have gotten it badly wrong here.

Big BLACK Convicts

Jesus, Scalia, at least try to hide it:

Conditions in California’s overcrowded prisons are so bad that they violate the Eighth Amendment’s ban on cruel and unusual punishment, the Supreme Court ruled on Monday, ordering the state to reduce its prison population by more than 30,000 inmates.
[...]
[Justice Scalia, dissenting] added that the prisoners receiving inadequate care were not necessarily the ones who would be released early.

“Most of them will not be prisoners with medical conditions or severe mental illness,” Justice Scalia wrote, “and many will undoubtedly be fine physical specimens who have developed intimidating muscles pumping iron in the prison gym.”

Not to be left out, Justice Alito wrote his own dissent warning Californians that "The three-judge court ordered the premature release of approximately 46,000 criminals — the equivalent of three Army divisions." Ladies and gentleman, Rodney King is back -- and he's brought enough friends to fill the I Corps.

Yes, Californians, the Supreme Court has just unleashed an army of huge, muscular, probably dark-skinned convicts, coming to rape you and your family. Probably while you're sleeping (well, they'll wake you up to make you watch).

I don't mean to demean the problem of criminals being released before their sentences are up -- though California's three-strikes rules mean that some of these inmates are serving life sentences to ensure they never steal a set of clubs again. One way to avoid the hellscape of violent criminals running free is for California to release non-violent offenders, like our aforementioned golf-club thief.

But the bigger point is that violating the constitution has consequences. It means criminals go free, for instance. It means local budgets have to pay settlements to persons abused -- money that comes out of police, education, and sanitation budgets. It's a bad thing to violate the constitution. And if California wants to maintain the hyper-carceral state its been building up, well, it either has to pony up the dough for it, or it's going to have to settle for letting folks loose some of the time. Because maintaining a prison system with inhumane conditions isn't the American way.

PS: Anybody remember The Boondocks parody reality TV show "Big Bruthah"? Which White guy can last the longest living in a house filled with big BLACK convicts? God, I miss that comic strip.

Taking on the SCOTUS

I wasn't as affected as most by the events surrounding Obama's slapdown of the Supreme Court's Citizen United decision last night. To be sure, I thought it took some stones to attack a recent Supreme Court decision right in the face of the justices -- particularly one which isn't obviously unpopular (I think it likely is unpopular, but it isn't the sort of pitchforks and torches decision that, for example, a ruling striking down "under God" from the Pledge would have been). At the same time, Justice Alito mouthing to himself "that's not true", which I didn't notice live, didn't really bother me that much either -- I don't think he meant it as a "you lie" moment, and my instinct was to not make a big deal about it.

But apparently others are. Glenn Greenwald's argument is that Alito has made himself into a political figure: a political hero to the right, and a political enemy of the left, and that's inconsistent with his role as a judge. It's a fair point, although it's easy to overstate the impact -- it's just a more explicit exclamation point on something the general public already is well aware of: there are liberal judges who like and are liked by liberals, and conservative judges who like and are liked by conservatives.

Meanwhile, Jeffrey Rosen sees this as an opening gambit for Obama to attack "conservative activism" by the Supreme Court. Rosen claims that historically, it hasn't taken much explicit executive pushback to see a court labeled as "activist". One thing I like about it is that it helps balance out years of Republican claims that conservative judging is about common sense and rule of law (there's a paradox there, but no time to discuss it), whereas liberal judges are just making stuff up because they spend too much time reading deconstructionists (or something). This is a chance for liberals to strike back a little bit and cast the conservative wing of the court as the one that is out of step with history, precedent, and the American people.

Civil Rights Roundup: 08/18/08

Your daily dose of civil rights and related news

I'm not sure I agree with this reading of Frederick Douglass' career, but the comparison to Obama is interesting nonetheless.

Virginia's new project to use DNA evidence to help exonerate falsely convicted prisoners continues.

The business community is throwing everything it has against the Ledbetter Fair Pay act.

The Kosher plant that was targeted in the Postville raid is having trouble getting itself back up and running.

How can we make it easier for our men and women in uniform to vote while overseas?

ACORN is looking to register Houston's poorest residents as voters.

An CAR native who came to the US legally for military training may be deported back to Africa, where he will likely face execution for being a deserter.

As we get ready to go back to school (or at least some of us do), the AP has a set of interesting educational stats to look at.

An author is suing PETA for their campaign which attempts to analogize animal suffering to slavery. PETA is a tremendously obnoxious organization, but I can't believe this suit has any merit.

The other LCCR (Lawyer's Committee for Civil Rights Under Law) is setting up a South Carolina hot line to which voters can report in election day problems, such as glitchy machines or intimidation.

Sen. Joe Lieberman (I-CT), who voted against Samuel Alito's nomination to the Supreme Court on the grounds that he was insufficiently committed to safeguarding equal opportunity, now thinks that vote was a mistake.

A growing number of students Florida and nationwide are receiving food stamps.

Bizarro Brennan

Due to finals and other end-of-term stresses, my blogging hasn't been quite at the level I've wanted it to be. Nonetheless, I can't help but link to Scott Lemieux's flip-out regarding Justice Samuel Alito:

Yes, his strategy is to avoid Scalia's culture warrior posing and rather -- like a bizarro world William Brennan, gone over to the dark side -- to cobble together precedents while subtly pushing them towards his ideological preferences, with an extra soupcon of bad faith.

Fun!