The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
I've now finished reading Oklahoma v. Castro-Huerta. I'll say this much: I found Justice Gorsuch's dissent here far more persuasive than I found his majority opinion in McGirt. Yet, if McGirt had come out the other way, there probably would have been no need for the Court to decide Castro-Huerta. With that observation out of the way, my primary reaction to this case is woah: Justice Kavanaugh and Justice Gorsuch reside in different realms. If you read the majority opinion, you see a fairly straightforward case that applies longstanding federal law. If you read the dissent, five unelected Judges have revived the Trail of Tears. Truly, the rhetoric in this case is startling.
Here is how Justice Kavanaugh describes the dissent:
From start to finish, the dissent employs extraordinary rhetoric in articulating its deeply held policy views about what Indian law should be.
Really, this sentence could make for a fun game of Gorsuch madlibs. Fill in the blank!
From start to finish, the [Gorsuch] dissent employs extraordinary rhetoric in articulating its deeply held policy views about what _____ law should be.
And generally, "madlibs" describes how progressives feel when reading a Gorsuch dissent (except on Indian law).
Kavanaugh continues, and accuses Gorsuch of legislating from the bench.
The dissent goes so far as to draft a proposed statute for Congress. But this Court's proper role under Article III of the Constitution is to declare what the law is, not what we think the law should be. The dissent's views about the jurisdictional question presented in this case are contrary to this Court's precedents and to the laws enacted by Congress.
If you're curious, here is Gorsuch's proposed statute:
Nor must Congress stand by as this Court sows needless confusion across the country. Even the Court acknowledges that Congress can undo its decision and preempt state authority at any time. Ante, at 6. And Congress could do exactly that with a simple amendment to Public Law 280. It might say: A State lacks criminal jurisdiction over crimes by or against Indians in Indian Country, unless the State complies with the procedures to obtain tribal consent outlined in 25 U. S. C. § 1321, and, where necessary, amends its constitution or statutes pursuant to 25 U. S. C. § 1324.
Plus Gorsuch cites Justice Ginsburg's Ledbetter dissent, urging Congress to change the law!
But thanks to this Court's egregious misappropriation of legislative authority, "the ball is back in Congress' court." Ledbetter v. Goodyear Tire & Rubber Co., 550
U. S. 618, 661 (2007) (Ginsburg, J., dissenting).
Not to be outdone, Gorsuch fires back that the majority is behaving like a legislature!
If the Court's ruling today sounds like a legislative committee report touting the benefits of some newly proposed bill, that's because it is exactly that. And given that a nine-member court is a poor substitute for the people's elected representatives, it is no surprise that the Court's cost-benefit analysis is radically incomplete. The Court's decision is not a judicial interpretation of the law's meaning; it is the pastiche of a legislative process.
Gorsuch accuses the majority of cowardice:
Where this Court once stood firm, today it wilts. . . . Where our predecessors refused to participate in one State's unlawful power grab at the expense of the Cherokee, today's Court accedes to another's. . . . Today, the tables turn. Oklahoma's courts exercised the fortitude to stand athwart their own State's lawless disregard of the Cherokee's sovereignty. Now, at the bidding of Oklahoma's executive branch, this Court unravels those lower-court decisions, defies Congress's statutes requiring tribal consent, offers its own consent in place of the Tribe's, and allows Oklahoma to intrude on a feature of tribal sovereignty recognized since the founding.One can only hope the political branches and future courts will do their duty to honor this Nation's promises even as we have failed today to do our own.
Gorsuch compares the majority to oracles:
Today the Court rules for Oklahoma. In doing so, the Court announces that, when it comes to crimes by non-Indians against tribal members within tribal reservations, Oklahoma may "exercise jurisdiction." Ante, at 4. But this declaration comes as if by oracle, without any sense of the history recounted above and unattached to any colorable legal authority. Truly, a more ahistorical and mistaken statement of Indian law would be hard to fathom. The source of the Court's error is foundational.
Gorsuch whips out the "five unelected judges" line–and paternalistic unelected judges, at that:
Start with the assertion that allowing state prosecutions in cases like ours will "help" Indians. The old paternalist overtones are hard to ignore. Yes, under the laws Congress has ordained Oklahoma may acquire jurisdiction over crimes by or against tribal members only with tribal consent. But to date, the Cherokee have misguidedly shown no interest in state jurisdiction. Thanks to their misjudgment, they have rendered themselves "second-class citizens." Ante, at 20. So, the argument goes, five unelected judges in Washington must now make the "right" choice for the Tribe. To state the Court's staggering argument should be enough to refute it.
And Gorsuch dumps the majority opinion into the Indian Law "anticanon."
The Court may choose to disregard our precedents, but it does not purport to overrule a single one. As a result, today's decision surely marks an embarrassing new entry into the anticanon of Indian law. But its mistakes need not—and should not—be repeated.
I checked–this was the first usage of the term "anticanon" in a Supreme Court opinion. Brett Kavanaugh, meet Roger Taney.
Finally, one of the most unexpected parts of Gorsuch's opinions is this passage:
Once more, Oklahoma could have responded to this development by asking Congress for state-specific legislation authorizing it to exercise criminal jurisdiction on tribal lands, as Kansas and various other States have done. The State could have employed the procedures of Public Law 280 to amend its own laws and obtain tribal consent. Instead, Oklahoma responded with a media and litigation campaign seeking to portray reservations within its State—where federal and tribal authorities may prosecute crimes by and against tribal members and Oklahoma can pursue cases involving only non-Indians—as lawless dystopias. See Brief for Cherokee Nation et al. as Amici Curiae 18 (Cherokee Brief ) ("The State's tale of a criminal dystopia ineastern Oklahoma is just that: A tale"). That effort culminated in this case.
Gorsuch faults Oklahoma for mounting a "litigation campaign." Or, stated differently, prisoners sought to vacate their state-imposed convictions, and Oklahoma appealed those cases to the Supreme Court. Granted, Oklahoma retained a vey prominent appellate advocate, but such representation is par for the course with such complex litigation. But more unexpected, Gorsuch faults the state for waging a "media . . . campaign." That is, using the Freedom of Speech to affect popular opinion about the case. Has a Justice ever before faulted a litigant–state or otherwise–for engaging in a media campaign? Now, I'll grant Gorsuch the fact that the Wall Street Journal took an exceptionally keen interest in McGirt. I lost count of the number of house editorials on the case. And I'm sure Oklahoma used some media relations firms to help promote the case. But why is a Justice criticizing that process?
What a vicious case.
Oklahoma, are you O.K.?
I am already dreading whatever comes from Cherokee Nation v. Brackeen, the ICWA case, next term. Gorsuch will be torn between the Scylla of Indian sovereignty and Charybdis of limited federal power. It's going to be ugly.