Gorsuch goes rogue again

There’s an interesting postscript on the politics of the United States supreme court, following on from last week’s discussion of its controversial ruling on abortion rights. As that case demonstrated, the court now has a six to three conservative majority (with chief justice John Roberts somewhat less adventurous than the other five conservatives). But they do not always stick together.

In 2020, before Amy Barrett had replaced Ruth Ginsburg, that majority was only five to four, so a single defector from the conservative side could change the outcome. And that’s what happened in a case called McGirt v. Oklahoma: Neil Gorsuch voted with the four liberals to rule that most of eastern Oklahoma was still native American tribal land, and that although the federal government had repeatedly broken its promises to the Creek tribes it had not extinguished their title:

Roberts and the other three conservatives all dissented, arguing that “the decision may destabilize the governance of vast swathes of Oklahoma.” And the state government of Oklahoma was equally concerned, and sought for ways to minimise or overturn it.

An opportunity came up this year in Oklahoma v. Castro-Huerta. The defendant Castro-Huerta was not himself a native American, but he argued that the state had no jurisdiction to prosecute him for a crime committed against a native American. The appeal court, relying on McGirt, agreed, and Oklahoma appealed to the supreme court.

With Barrett now on the court, the conservatives have a majority even without Gorsuch. They did not use it to overturn McGirt, but last week they drastically confined its scope, ruling that the state retained concurrent jurisdiction to prosecute crimes on tribal land unless it had been specifically pre-empted by federal legislation – which they held had not happened with this type of case. Brett Kavanaugh wrote the majority judgement, joined by Roberts, Barrett, Samuel Alito and Clarence Thomas.

Gorsuch dissented, joined by the court’s three liberals. And he and Kavanaugh attacked each other’s views in unusually strong terms. Gorsuch says that the majority’s central contention comes “unattached to any colorable legal authority” and that “a more ahistorical and mistaken statement of Indian law would be hard to fathom,” while Kavanaugh in turn describes the dissent as “inconsistent with the Constitution’s structure, the States’ inherent sovereignty, and the Court’s precedents.”

Writing in the New Republic, Matt Ford says that “the two opinions in Castro-Huerta read like a knife fight broke out during the justices’ first conference after oral arguments in the case,” and he points out that this is all the more remarkable in view of the fact that Gorsuch and Kavanaugh are generally on the same side. But it may be that the habit of partisan rhetoric, once acquired, is not so easily put aside.

When Gorsuch was appointed I commented on Facebook that he was not “anywhere near as bad as we might have feared from Trump,” but that nonetheless “when the chips are down I think he’ll vote to gut the Bill of Rights. To put it bluntly, the Federalist Society wouldn’t have backed him otherwise.” The last fortnight of decisions would appear to have confirmed both limbs of that judgement.

But Castro-Huerta also shows that there are some limits on the majority’s power. The five justices could have simply said that the decision in McGirt – in which, remember, four of them had dissented – was mistaken and overruled it. Perhaps some of them privately argued for taking that step, but there is no sign of it in the judgement. Instead, they found a way around it.

With the exception of Roberts, they had shown no such restraint the previous week when it came to overruling Roe v. Wade. That, however, was a conservative cause célèbre, widely debated for almost fifty years; it would have been an open betrayal of their sponsors for them to do otherwise. When the stakes were more modest, the justices chose not to look foolish by changing the law after only two years.

(See also my report on this case from 2018 for another occasion when Gorsuch showed he has a mind of his own.)

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