The surprising reason Neil Gorsuch has been so good on Native rights
How did an archconservative justice on an archconservative bench become the best friend Native Americans have ever had at the Supreme Court? That is the question court observers are once again asking ourselves in light of Justice Neil Gorsuch’s role in Thursday’s hugely consequential decision protecting Native rights. Oddly, the answer may lie in the very judicial philosophy that pushes him so far to the right in so many other cases that do not involve the rights of a group he sees himself as a benefactor for.
Gorsuch didn’t write the 7–2 majority opinion upholding the Indian Child Welfare Act, but he penned a characteristic concurrence infused with profound empathy for Native people. It’s just the latest in a long line of cases in which Gorsuch has gone to bat for Indigenous communities, bemoaning their centuries of persecution by the U.S. government. Again, the question arises: Why is he so consistently in line with progressive values on this one issue?
The standard explanation is that Gorsuch is a Westerner who spent his childhood in Colorado and his lower-court career adjudicating many “Indian law” cases on the U.S. Court of Appeals for the 10th Circuit. And that’s surely a part of it: Most justices have little contact with Native Americans, which seems to translate into a myopic view of issues that affect them. As John E. Echohawk, executive director of the Native American Rights Fund, told the New York Times’ Adam Liptak: “He’s the only Westerner on the court. He knows these issues. He knows these tribes.”
There is, however, another element of Gorsuch’s Indian law decisions that isn’t captured by his personal biography. A persistent theme of Gorsuch’s jurisprudence is a conviction that the nation’s ills can almost always be attributed to some deviation from the Constitution’s original design and that restoring constitutional governance as envisioned by the Framers will right many wrongs of American history. Nowhere is that belief more consistent—and true—than in the Indian law cases. Gorsuch is right: The Constitution does command a certain measure of sovereignty and respect for tribes and their members; America’s brutal oppression of Native Americans represented a sharp break from the Framers’ intent. [Continue reading…]