In short, “incoherence.”
The paper is titled, “Marshall and O’Connor: Categorical First Justices and Their Impact on Federal Indian Law.” The paper is available on BEPress. Here is the abstract:
Thurgood Marshall was the first African-American appointed to the United States Supreme Court. Sandra Day O’Connor was the first woman appointed. As firsts in their category their historical role is assured, but their legacy is broader. This Article examines one piece of their legacies: Is it plausible to find some of their character as ‘Firsts’ in their opinions for the Court in Indian cases? Specifically can we find a legacy of categorical pioneering in the Justices’ treatment of American Indians as another category of people underrepresented on the Court?
My working hypothesis was that the sympathy some might expect from one minority group to another would not be found. As expected predictions of outcome are shaky, but the examination below shows something at least as valuable. Many of the case results are foreshadowed by the structure of the Justices’ opinions. In addition, the structural approach chosen by each justice says more about a wider agenda for both of these important historical figures. In short the history and richness that is Indian Law added to the richness of the roles these justices played in Court life and Supreme Court jurisprudence.
Marshall’s and O’Connor’s opinions in the complex and sui generis area of Federal Indian Law beat a path through Indian cases that says much about their political views, but little about the foundations of Indian law itself. Reading their bodies of opinions and comparing their works tells us something about their sympathies, but does not explain why Indian law should be treated as a board game for political strategies. The Court’s treatment of Indian law during the periods these two first-justices served will be shown to be a pivotal time on the Court yet it becomes apparent in looking at their opinions that neither is truly engaged in the rich and intricate world of Indian law. Something else is at work.
After a description of the exceptionalism created by the Marshall trilogy this Article lays out a metric for examining Indian law opinions. Using this metric based on Indian Law exceptionalism the Article evaluates the work of the justices to see if a pattern of favoritism emerges. Along the way we will find that the four doctrines give us a useful way to test the Court’s work in any case decided since the Marshall trilogy of the early 19th century.
Part of what is offered here is a way to judge, systematically, the truth of a claim that the ‘decision was a victory for Indians.’ The greater part here is directed to knowing when the Court is manipulating its doctrines to achieve a result. What will be demonstrated below is that Marshall was not only more true to the tribes than O’Connor, but more true to the doctrines. But it must be added that Justice O’Connor seemed to grow into the doctrine while Justice Marshall seemed to lose sight of it.
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