Here.
High Country News: “Why Justice Anthony Kennedy wasn’t good for Indian Country The retiring Supreme Court justice leaves a legacy of anti-tribal votes.”
Here.
Justice Kennedy
Reflections on Justice Kennedy’s Indian Law Legacy
My most enduring memory of Justice Kennedy is no doubt watching him lean over the bench, red faced and angry, screaming/yelling/lecturing at Neal Katyal during the Dollar General oral argument. I concluded then, if I hadn’t already before that moment from his writings, that Justice Kennedy was so disturbed by tribal jurisdiction over non-Indians and non-Indian businesses that he angrily wanted to protect a non-Indian sexual predator from the horror of being subject to a tort claim in tribal court.
Justice Kennedy was confirmed for SCOTUS in 1988. His first vote in an Indian law case was in Oklahoma Tax Commission v. Graham. His last vote in an Indian law case was in the Upper Skagit matter (he recused in the culverts case). During his tenure, tribal interests cleanly won 15 cases and cleanly lost 40 cases. There were two cases in which there were two or more issues in which tribal interests won and lost. There were three cases decided by 4-4 tie votes (including one which Kennedy was recused), and in which tribal interests had prevailed below. There were two non-criminal cases in which the interests of individual Indians were at play, making it difficult to declare it a clean win or loss for tribal interests. There was one case the Court remanded (not talking about Upper Skagit) without a clear winner. In short, it was/is a bad time for tribal interests — just under a 30 percent win rate for tribes, adding in the tie cases.
Justice Kennedy’s voting record was overwhelmingly oppositional to tribal interests. Kennedy voted cleanly in favor of tribal interests 11 times (and that includes Lara, in which he wrote a scathing opinion blasting tribal powers, and nearly half of those votes were in the past few years), and voted cleanly against tribal interests 45 times. There was one case where voted to split issues. We can and should presume he was an anti-tribal vote in both of the 4-4 tie cases (and would have been a deciding vote against the tribes and the US in the culverts case had he not recused). I count just under a 20 percent pro-tribal vote rate for Justice Kennedy.
Justice Kennedy wrote relatively few Indian law opinions, as few as Justice Scalia. It should be clear to observers that during this period, Chief Justice Rehnquist, Justice Thomas, and junior justices carry the conservative side’s laboring oar in Indian law, not right wing stalwarts who write the federalism and anti-civil rights opinions.
The most important majority opinion Justice Kennedy wrote was Duro v. Reina, though Rice v. Cayetano comes in a close second. Duro really shouldn’t be considered an important opinion because it was so clearly wrong on so many levels Congress enacted a temporary Duro fix within weeks of its announcement, making the fix permanent within a year or so. Perhaps because the principles Justice Kennedy advanced in Duro were principles he had been working with in his own mind since at least the 1970s when he dissented as a Ninth Circuit judge in Oliphant [544_f.2d_1007] — this is America where Americans must consent to government and non-Indians cannot choose to be subject to tribal jurisdiction because they cannot be tribal citizens — he seemed to ache to have an opportunity to strike down the Duro fix. His concurring opinion in United States v. Lara lays out how his consent theory would be enough to kill the Duro fix and all but asks the Court to seek a vehicle out for review, a vehicle that never came (sorry Russell Means, you shouldn’t have hired a lawyer). Maybe the biggest problem for Kennedy’s consent theory is that it’s completely farcical and simply not grounded in the Constitution or reality (try driving from Michigan to New Mexico just to vote, not that I would have voted for Gavin even if I could vote — go Deb Haaland!).
For all my criticism, I have a favorite Kennedy opinion, his lower court opinion in United States v. Finch [548_f.2d_822], a precursor to the Montana v. United States case in which SCOTUS held that the Crow Nation did not possess the Big Horn River. Kennedy wrote strongly in favor of the tribe’s ownership, guaranteed by treaty, an opinion that shows how completely misguided Justice Rehnquist’s Montana decision actually was. If he had been that judge during his tenure as a Supreme Court judge he’d be celebrated, even worshipped, by Indian country. Instead a collective “meh” upon his retirement, Indian country would be mourning the retirement of a great justice.
News Profiles [from the left] on Justice Kennedy’s Legacy
Turtle Talk will, of course, in time, have it own post on the retirement of Justice Kennedy, but for now, check out these profiles:
The Intercept: FAREWELL TO ANTHONY KENNEDY, AUTHOR OF SOME OF THE MOST LUDICROUS PRONOUNCEMENTS IN SUPREME COURT HISTORY
ThinkProgress: Justice Kennedy deserves this nasty, unflinching sendoff
ATL’s Elie Mystal: Justice Anthony Kennedy Is Retiring — Fresh off of helping white supremacists defend bigotry towards gays, Muslims, and blacks, Kennedy is peacing out
New Republic: Anthony Kennedy Was No Moderate
If you’re somehow curious as to how the right thinks of Justice Kennedy….
Commentary: Justice Kennedy’s Mystical Jurisprudence
National Review: Good Riddance, Justice Kennedy
On Justice Sotomayor’s Judicial Philosophy
Angelique EagleWoman sent around this short article commenting on Justice Sotomayor’s judicial philosophy, which contains this remark:
In literally every case involving Native American rights in any form, Sotomayor has always sided with the Natives. In Match-E-Be-Nash-She-Wish Band v. Patchak, U.S. v. Jicarilla Apache Nation, Salazar v. Ramah Navajo Chapter, and most recently in Adoptive Couple v. Baby Girl, Sotomayor has taken the side of the Native American parties, even if that meant her being one of the only dissenters, if not the sole dissenter.
Thus, even though Sotomayor can be accurately labeled as “liberal, but unpredictable,” she’s still quite predictable in cases involving Native rights.
– See more at: http://westlawinsider.com/top-legal-news/sonia-sotomayor-liberal-yet-unpredictable-with-one-exception/#sthash.1d1vpQzq.dpuf
As an advocate for most tribal causes, I find it refreshing to see a Justice take an interest in Indian law and tribal interests. Even when she’s in dissent, which she will be nearly every time until (and if) there is a massive shift in the Supreme Court, she gives a voice to the tribal advocates and their cause that has been missing since the retirements of Justices Blackmun and Brennan (and, I would argue, the entire history of the Supreme Court and the federal judiciary). In fact, Justice Sotomayor’s SCT record is far better than tribal advocates could have hoped when President Obama nominated her.
But a word of caution. My sense is that the strong dissents coming from Justice Sotomayor are being heard by those on the Court in opposition to her views — and they are responding in kind. I read Jicarilla and Adoptive Couple (despite the real and continuing tragedy of that case) as being very narrow questions, but looking at the majority opinions, there are broad statements directly attacking important understandings of tribal interests that might not have appeared in a majority opinion except in response to a strong dissent. Would Justice Alito have made such damning remarks about the trust responsibility and the Indian Child Welfare Act unless the legal positions the majority adopted had not been so powerfully attacked by Justice Sotomayor? I wonder.
An analog of sorts are the equal protection cases, where there is simply no full-throated defense of marriage equality from the liberals on the Court so terrifically and justifiably worried about losing Justice Kennedy’s vote. When you’ve the votes, you don’t need to defend the position as much. But, in the case of affirmative action, where the last strong defense of AA came in Bakke, the liberal side’s analysis hasn’t been developed at all. It has hurt in the long run.
In sum, Justice Sotomayor’s dissents are outstanding and powerful, and much of what she argues may one day become the law. At least someone on the Court is making those arguments. And I suspect the majority knows, like Justice Scalia admitted in other contexts, that they’re on the wrong side of history; hence, the expansive dicta. And to lower court judges, dicta is the law. Tribes are timeless entities. But there’s a long slog ahead.
P.S. I thank Yale law prof. Reva Siegel, whose scholarship and comments significantly influenced these views of mine.
On Being (Mis)Cited by the Supreme Court
From the NY Times.
Nor was Justice Kennedy’s brief quotation from “Actual Innocence” especially punctilious. Here is how the justice rendered it, including his brackets and ellipses: “[P]rompt [DNA] testing … would speed up apprehension of criminals before they commit additional crimes, and prevent the grotesque detention of … innocent people.”
Those first three dots covered a lot of ground. They took the place of more than six sentences and suggested a different point than the one the authors were making. The original passage concerned evidence collected at crime scenes, not from people who might be connected to it.
“What we were saying had nothing to do with post-arrest testing of suspects,” said Jim Dwyer, a co-author of the book who is now a columnist for The New York Times. “We were arguing that all evidence should be tested, whether or not a suspect had been charged.”
Mr. Neufeld agreed. “The ‘prompt testing’ is referring to something completely different than the latter phrase,” he said. “Barry, Jim and I never endorsed arrestee databases.”
The omission of two words with the second set of dots is easier to understand. The authors had written that testing could prevent “the grotesque detention of thousands of innocent people.” Justice Kennedy apparently did not want to endorse the possibility that the criminal justice system had such widespread shortcomings. (The Innocence Project, which is affiliated with the Benjamin N. Cardozo School of Law in New York, says that more than 300 prisoners have been exonerated using DNA.)
WaPo Coverage of Patchak Argument
Here (h/t Pechanga). An excerpt:
Several Supreme Court justices seemed troubled Tuesday at the thought of letting a lawsuit move forward that aims to shut down an already opened tribal casino in southwestern Michigan.
“It does seem that we may be wasting our time,” Justice Anthony Kennedy said. “I’m not suggesting that the … case is moot, but you did wait for some three years before you brought this suit. The building was built.”
Why Justice Kennedy Could Be the Most Important Justice in the 2010 Term in Indian Law Cases
Today, Michigan State University’s Indigenous Law and Policy Center hosts its Seventh Annual Indigenous Law Conference, “Persuasion and Ideology: Politically Divisive Cases in Appellate Courts.”
My talk today is titled, “The Elusive Fifth Vote.” The idea for this talk derives from exchanges I had with Phil Frickey after the Supreme Court decided Plains Commerce Bank 5-4 in 2008. We had talked about co-authoring a paper with the hope of identifying a fifth vote in favor of tribal interests in a future case. Unfortunately, Phil walked on before we could write this paper.
The longer paper will focus on the five Justices that voted against tribal interests in Plains Commerce Bank. While the composition of the Court has changed since this case, the five Members in the majority remain on the Court. They are Chief Justice Roberts, and Justices Scalia, Kennedy, Thomas, and Alito. Interestingly, the toughest questioning in the PCB case came from Justice Scalia to the Bank’s attorney Paul Banker, who had no answer as to why the Bank (which had drafted the loan documents at issue) never made clear what the proper venue (state or tribal) would be in a foreclosure action. Regardless, Scalia joined Chief Justice Roberts majority opinion.
These five Justices form a block that is a tough nut to crack in many cases. Four of them are truly reliable votes in virtually all constitutional law cases, with Justice Kennedy the only one of the five likely to stray on occasion. This, of course, puts Justice Kennedy in the apparent role of swing vote, even if he is really a very conservative Justice.
But Justice Kennedy isn’t necessarily a swing vote in Indian law cases. As part of the preliminary research into the paper, Phil and I concluded Kennedy voted against tribal interests even more than Scalia. Moreover, we don’t have much of a track record to go on in regards to Chief Justice Roberts and Justice Alito.
Nonetheless, at least for this Term, my suspicion is that Justice Kennedy will be the most important Justice in the Indian law cases (I’m assuming there will be more than one) in this Term.
Dean Chemerinsky on the Roberts Court
Dean Erwin Chemerinsky has posted “The Roberts Court at Age Three” on SSRN, forthcoming in the Wayne Law Review. Here is the abstract:
On June 26, 2008, the Supreme Court completed the third term of the John Roberts era. This article develops four themes concerning where the Supreme Court is right now and where it is likely to be going. First, so far, the Roberts Court has been characterized by its dwindling docket. Second, although it is called the Roberts Court out of tradition and deference to the Chief, in actuality it is the Anthony Kennedy Court. When it matters most, Kennedy is virtually always the deciding vote in 5-4 decisions. Third, this is the most conservative Court since the mid-1930s and is a Court that generally favors the government over claims of individual rights and business interests over those of employees and consumers. Fourth, the 2008 election is likely to determine whether the Court becomes more conservative or stays ideologically the same. It is unlikely that the Court will become more liberal during the next presidency or even the next five to ten years.
“Our Savage Neighbors” Wins National Award
Apropos of Justice Kennedy’s shout-out to “hostile Indians” in yesterday’s oral argument in the D.C. gun case, the Legal History Blog reports that Peter Silver’s book “Our Savage Neighbors: How Indian War Transformed Early America” won one of the Bancroft Awards for books published in 2007.
I’m a big fan of Silver’s book. It’s easy to forget that the Founding Fathers were pretty nervous about those Indians on the other side of the Appalachians, both north and south. It was in 1763 when Pontiac (Odawa!) organized a major military offensive in the Great Lakes region, with attacks on numerous British forts from Michilimacinac to Detroit — all on the same day!
Does that mean the Second Amendment was about self-defense? No.
Justice Kennedy: “Hostile Indians” may have been a motivating factor for 2nd amendment.
In yesterday’s oral arguments at the Supreme Court for District of Columbia v. Heller – the case regarding the constitutionality of the Washington, D.C. handgun ban – the justices were concerned with the issue of whether the right to “bear arms” under the 2nd amendment is a “personal” right, or a right secured for the states to allow them to organize a militia.
Justice Kennedy indicated his belief that the right is personal, and suggested that “hostile Indian tribes” may have been a motivating factor. From the transcript of oral arguments:
JUSTICE KENNEDY: Well, do you think the clause, the second clause, the operative clause [of the second amendment], is related to something other than the militia?
MR. DELLINGER [Attorney for Washington, D.C.]: No. I think —
JUSTICE KENNEDY: All right. Well then —
MR. DELLINGER: — the second clause, the phrase “keep and bear arms,” when “bear arms” is referred to — is referred to in a military context, that is so that even if you left aside —
JUSTICE KENNEDY: It had nothing to do with the concern of the remote settler to defend himself and his family against hostile Indian tribes and outlaws, wolves and bears and grizzlies and things like that?
MR. DELLINGER: That is not the discourse that is part of the Second Amendment. And when you read the debates, the congressional debates, the only use of the phrase “keep and bear arms” is a military phrase, and —
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I’m not one who likes to attempt to divine a sinister meaning from every off-hand remark, but I did find Justice Kennedy’s use of the term “hostile Indian tribes” along side “outlaws, wolves and bears and grizzlies and things like that” interesting. I don’t believe that he intended to insult Indian tribes with his remark, but I do believe that it is reflective of the court’s longstanding and continuing view that Indian tribes are a danger to society (see the Oliphant & Montana cases)- just like “outlaws, wolves and bears and grizzlies and things like that.” I’ll leave it to Matthew, Wenona, and Kate to expound upon any deeper meanings in this statement. I just found it both interesting and amusing.
The complete transcript of the oral argument in the D.C. handgun case can be found on the SCOTUS Blog.
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