by Noah Feldman
Justice Amy Coney Barrett’s majority opinion for the Supreme Court in Haaland v. Brackeen is conservative in the good, old-fashioned sense of the word. In upholding the Indian Child Welfare Act, the court reaffirmed precedent and declined an invitation to revolutionize the law with a reactionary constitutional holding. Along the way, Barrett demonstrated a style of doctrinal confidence and aphoristic clarity reminiscent of her old boss, Justice Antonin Scalia. The opinion marks a step in her bid to inherit Scalia’s role as the leading conservative voice on the court.
Meanwhile, in a separate concurrence joined by the court’s two most liberal members, Justice Neil Gorsuch continued his laudable effort to tell the truth about the history of U.S. oppression of Native Americans in the court’s official records, known as the U.S. Reports.
The conservative judicial revolution isn’t over, not by a long shot. Expect further conservative activism in the days to come. And Justice Brett Kavanaugh wrote separately to suggest that the court might still in the future strike down some of ICWA’s key provisions as violating the equal protection clause.
Nonetheless, the decision in Haaland v. Brackeen can tell you something about what a sane conservative court could look like.
The provisions of the ICWA at stake in the case essentially require that, when a Native American child needs an adoptive placement, the state court considering the issue place the child with an Indian family member if possible, or failing that, with a fellow tribal member or at least an American Indian. A non-Indian family is the final resort.
As Gorsuch pointed out, the law, enacted in 1978, was designed as a very partial repair to the terrible history of Native American children being forcibly taken from their families. The practice started in the 19th century with mass placement of Native kids in boarding schools designed to rob them of their culture and continued through the 1970s with forcible legal separations — and adoptions by White parents — that were thinly justified by the excuse that children would be better off if taken from their parents.
The parties in the Brackeen case challenged the adoption provisions of ICWA in two ways: by claiming that the law was outside Congress’s constitutional authority to pass in the first place; and by asserting that the law is racially discriminatory in that it treats Native American children differently from White children and Native American adoptive parents differently from White adoptive parents.
Barrett firmly rejected the notion that Congress lacked the power to legislate for the welfare of Native American children. Relying on caselaw, Barrett wrote that Congress’s power in the field was “muscular,” subject only to the limitations placed by the Constitution. (In a Scalian touch, she quipped that “like the rest of its legislative powers,” Congress’s authority “must derive from the Constitution, not the atmosphere.”)
Responding to the suggestion that family law is always a matter for states, not the federal government, Barrett called the argument “a non-starter,” noting that “the Constitution does not erect a firewall around family law.” And as to the claim that Congress can legislate with regard to American Indians collectively but not individually? A “dead-end” — because of contrary precedent.
In a particularly sharp retort to the parties who wanted to limit Congress’s power, Barrett made short shrift of their claim that state-run family courts could not be made to obey federal law. “This argument runs headlong into the Constitution,” she wrote, citing the supremacy clause of the Constitution. “End of story.”
When it came to the potentially most revolutionary aspect of the case, the argument that ICWA racially discriminates in violation of equal protection, Barrett declined to address the issue. Instead, the court held that the parties lacked standing to raise the issue on technical grounds.
The effect was to leave the issue for another day, provided four justices (the number required for the court to take a case) are ever prepared to take it up. Kavanaugh’s concurrence signals he would vote to consider it. But Gorsuch’s hints he would not — which means it would be up to Barrett or Chief Justice Roberts to provide the third and fourth votes alongside Justices Clarence Thomas and Samuel Alito.
That might not happen. In this opinion, Barrett, who has adopted kids of her own (as does Roberts), showed legal mastery, common sense and judicial flair — as well as respect for the basic, precedent-based structure of the relationship between the federal government, the tribes and the states.
The court’s conservative judicial revolution is ongoing, and I expect to see more radical decisions on issues like abortion, affirmative action, the environment and church and state. But the Brackeen case offers a glimpse of what can happen when the conservative Gorsuch is guided by his heart and the conservative Barrett is guided by traditional conservative legal values like judicial restraint.
The practical takeaway is that ICWA is safe for now, and potentially for a long time to come. That’s good news for tribes — and for the legal continuity that comes from respecting precedent.
