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.
Turtle Talk 