There were least two important decisions on Indian law this term. (And, yes, that remains the proper term for this field of law in the United States -- https://www.law.cornell.edu/wex/american_indian_law.)
The sovereign rights of the tribes (as "domestic dependent nations") were tested this year both as regards federal bankruptcy law and in connection with adoptions policy. The tribes came up 1 for 2. SCOTUS rejected their claims of immunity from bankruptcy, but upheld the Indian Child Welfare Act. The former was an 8 to 1 decision. The only dissent came from Justice Gorsuch, who has become known as the most pro-Indian Justice since William O. Douglas.
I am reminded of a statement that used to be attributed to Justice Douglas, re: his rule in deciding how to vote: "the individual over the government, the government over the corporation, the environment over everything, and give the Indians whatever they want."
In this instance, even Justice Douglas might well have parted from the fourth clause in that rule. The tribal authority created a payday loan operation, advancing loans that would have been illegal as usurious under other circumstances. The other party here is Brian Coughlin, who filed for bankruptcy after borrowing from the Lac du Flambeau Band.
The Bankruptcy Code provides for an automatic stay of any collections. Regardless of Coughlin's filing, though, the lender continued to engage in collection attempts, setting itself up for the challenge that ended before SCOTUS.
The bankruptcy code specifically excludes claims of sovereign immunity on the part of governmental entities "foreign or domestic." Both sides in the dispute pointed to that phrase. The Band said that it would have been customary to spell out the inclusion of Indian tribes if Congress has chosen to do so. Coughlin said that tribal entities are clearly covered under the phrase, and no "magic words" are required.
Gorsuch's dissent compared the phrase "foreign or domestic" to a provision in a law regarding ice cream. If it referred to ice creams "vanilla or chocolate" it would not have specifically included Neapolitan.
Justice Jackson wrote for the Court. Her opinion says that the "vanilla or chocolate" analogy is inapt. “[U]nlike … ice creams (which need not be chocolate or vanilla), every government must be foreign or domestic to some degree; the question is just where on the spectrum it falls.” That sounds like unimpeachable logic to me.
The Indian Child Welfare Act
The ICWA, enacted in 1978, gives tribal governments (a) exclusive jurisdiction over children who reside on or are domiciled on a reservation and (b) concurrent but presumptive jurisdiction over foster care placement proceedings for Native children who live off the Rez. The law was passed to end a long sad history of the separation of Native children from their families.
This session the law survived constitutional challenge before the court by a vote of 7 to 20, only Justices Thomas and Alito dissenting. Justice Amy Coney Barrett wrote for the majority.
As a general proposition: Thomas and Alito are crazy and corrupt, and are generally unreachable through reason. I am not happy to say this. I defended Thomas at the time of his nomination and the Hill allegations. Also, Thomas gave my career as a writer a big lift when he cited an article of mine in an opinion in the 44 Liquormart decision in 1996. That eventually helped me get a job writing about hedge funds -- and I will remain grateful for that no matter how crazy and corrupt Thomas gets.
Still: Thomas and Alito are corrupt. This is not fatal to good jurisprudence, as this decision and several of the others we have discussed in recent posts goes to show. But a rational result generally demands that one find at least 5 among 7, after giving up on those two. The problem is that rationality has become unnecessarily difficult because of this arithmetic.
The case against ICWA, by the way, was not an argument for color blindness in the law. It was an application of the "anti-commandeering" doctrine. This is the doctrine that the United States cannot commandeer the machinery of state governments for its own ends. Barrett, in her opinion for the majority, dd not argue against the anti-commandeering doctrine's core precedents. But she did say that it has limits, as a "logical consequence of our system of 'dual sovereignty' in which state courts are required to apply federal law." The federal government CAN impose record-keeping requirements upon the states without affronting federalism.
Or, in Barrett's words, "Congress [has] also required state courts to administer oaths to prisoners, to issue certificates authorizing the apprehension of fugitives, and to collect proof of the claims of Canadian refugees who had aided the United States in the Revolutionary War."
One can hear her tapping her toe and whispering, "so deal with it."
Voting rights and gerrymandering
Finally, in our version of jurisprudential Hamlet, we have arrived at The Prince himself. This will go down in history as the session in which Republicans, working through three different state systems, sought to gut the voting process, to make of themselves a self-sustaining elite in perpetuity. And it is the session in which they swung and missed at each of the three softball pitches they gave themselves. Resort to the ballot box, as the ultimate non-violent "check and balance," survives.
The three state systems involved were: Alabama, Louisiana, and North Carolina. we will treat of them in that order.
Alabama's maximalist argument in Allen v. Milligan, was that it shouldn't have to justify its congressional map because the Voting Rights Act is blatantly unconstitutional and should be thrown out. Since they knew that argument wasn't going to prevail in its naked form, they also suggested a somewhat draped variant. A court can ask itself whether Alabama's lines have disenfranchised a particular demographic, they concede. But when it considers this it must use a "race-blind baseline."
What does that mean? Apparently it means that a map will pass muster so long as a state can give a reasonable explanation of the race-blind factors that went into its creation. Alabama explained that the map under debate was created after the 2020 census numbers were in, using guidelines that prioritized population equality, continuity, compactness. and the avoidance if incumbent pairings. You can write that sentence, as I just did, without mentioning race. One doesn't have to say "we like to keep all the colored folk packed into the same district so all the other districts will vote white." So ... all is good. Right? Well ... no.
Chief Justice Roberts decision chops this argument up into tiny pieces like a sushi chief on crack. One appealing aspect of the performance: he aims at Justice Thomas' dissent the sort of waspish footnote that Scalia used to love to write. In Scalia's opinions the sharp-tongued footnotes were of course aimed at liberals. Roberts aims them at Thomas.
For example, Thomas wrote in his dissent that courts have been "methodically carving the country into racially designated electoral districts" for decades. That is presumably the harm that the adoption of a race-blind baseline would cure.
But, as Roberts aptly says in footnote 4, that harm doesn't exist. Proportionally representative districts are "absent from nearly every corner of this country despite sect. 2 being in effect for over 40 years. And in case after case, we have rejected districting plans that would bring States closer to proportionality when those plans violate traditional districting criteria." Thomas (Roberts says, using a phrase of Thomas' against its drafter) is quixotically jousting with an imaginary adversary.
The Louisiana decision followed soon thereafter. It is in form a simple procedural matter. The Court, on June 26, lifted a hold it had placed last year on remapping litigation there. The high court had created the hold in order to deliberate over the Alabama case before any further action was taken about Louisiana's laps. In both states, the maps have the effect of keeping a heck of a lot of the black voters in a single district, although the geography of the state in either case could easily allow for a second minority-majority district.
So, having now decided that such a situation is worth correction in Alabama, the court lifts a freeze on proceedings in Louisiana. It isn't difficult to see in which direction this pushes things.
In reaction, the Louisiana Legislative Black Caucus said that it is very confident that the state will have a second majority-Black district in place for the 2024 congressional election.
Then? Well, then ... North Carolina.
In the big North Carolina voting-rights case of this term, Moore v. Harper, the US Supreme Court was asked to block the courts of North Carolina from adjudicating the electoral arrangements made by the same state's legislature.
Since SCOTUS has recently decided that it and the federal courts in general should be out of the policing of partisan gerrymandering, only the state courts can do so. [Reminder: "partisan gerrymandering" implies jiggering of district lines to advance one political party over another, considered in separation from a racial element and so in separation from the 15th amendment to the constitution. Also, all parties presume in our era that the one-person-one-vote rule must be applied, so "partisan gerrymandering" here means jiggering that does not blatantly violate that rule.]
The policing of partisan gerrymandering, then, is to be left to the state courts. BUT ... along comes a new theory, the "independent legislature" theory, to the effect that the state courts should stay out of this question too. Nobody gets to question the partisan gerrymandering of a state legislature at any level. This was the theory.
If it sounds to you like a power grab, the effort of the poohbahs of the Republican Party to insulate the party from voters and make the poohbahs a self-defined governing elite, answerable only to each other ... well, that is not an unfounded reading.
The case for this remarkable theory is the elections clause of the US Constitution, which reads as follows: "The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof." The most intuitive way of reading that language is simply that each state will decided these thigs through its own legislative process. Consider the Governor's role. A state's governor is not a legislator. But he or she IS part of the normal legislative process and can veto a bill on the times, places, and manners -- if the state's constitution allows him to veto bills in general. This veto is presumably subject to the override by the legislature if the constitution provides for THAT.
Likewise (I think this is still pretty intuitive) the elections clause, in leaving the matter to the states, does nothing to cut off the role of the state courts in reviewing the acceptability of the results according to the state's own constitution. That is all part of the state's legislative process.
Adherents of the "independent state legislature" (ISL) theory set aside all of that. The word used in "legislature." This is a body consisting of every actual legislator and of nothing or no one else. Any decision overturning what they did in these matters must be a violation of the framers' intention, as must any gubernatorial veto of such a bill. So says the academic mind of Michael Morley. Those who follow his reading do so not because they find it persuasive but just because they find it convenient.
When Moore v. Harper got to the US Supreme Court, it came with some mootness baggage. For reasons I won't get into here, there was some reason to believe the court would say the issue had become moot and it would refuse to go further into the matter.
The decision, when it did come down, rejected "mootness" as an off-ramp and went instead with a sound rejection of ISL.
The Justices' opinions broke down 6 - 1 - 2. Six Justices (the three "liberals," along with Kavanaugh and Barrett and, writing for them, the Chief Justice) rejected ISL root and branch, saying: "State courts retain the authority to apply state constitutional restraints when legislature act under the power conferred upon them by the Elections Clause."
One Justice, Alito, would have found mootness and remained silent on the issue of the ISL. The remaining two, Thomas and Gorsuch, would have embraced the ISL.
In conclusion, then, the ISL had to be rejected and it has been rejected. The "race-blind" reading of the Voting Rights Act and the 15th amendment likewise had to be rejected and were rejected: twice. Those necessary rejections were the achievement of this session of the Supreme Court.
Not bad.
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