In a pair of opinions on Thursday, Judge Neil M. Gorsuch again pointed out that he is the most ardent supporter of Native American rights on the Supreme Court.
That doesn't come as a surprise to those who knew him when he served in federal appeals court in Denver.
“She's from Colorado,” said John E. Echohawk, executive director of the Fund for the Rights of Native Americans. “He's the only Westerner on the pitch. He knows this problem. He knows these tribes.”
Justice Gorsuch cast a majority on Thursday 7 to 2 decision rejected a constitutional challenge to India's Child Welfare Act, a 1978 law that sought to keep Native American children with their tribe. He joined Judge Amy Coney Barrett's 34-page majority opinion and added 38 pages of her own, in a aligned opinion steeped in history and marked by fiery rhetoric.
“Often, Native Americans come to these courts seeking justice only to walk away with their heads bowed and their hands empty,” he wrote. “But it's not that this court has no justice to offer them. Our constitution provides for tribes a place — an enduring place — in the fabric of American life.
Two of the court's liberal members, Judges Sonia Sotomayor and Ketanji Brown Jackson, joined Judge Gorsuch's largely disapproving opinion.
In the second case, regarding the application of bankruptcy laws to Indian tribes, Justice Gorsuch was the only dissident. Here too, he took the distant view. “The text of the Constitution – and two centuries of history and precedent – establish that tribes enjoy a unique status in our laws,” he wrote.
Native American lawyers and scholars have noted Justice Gorsuch's special dedication to tribal rights.
“He understood what was at stake and took tribal sovereignty seriously in a way few judges in the history of the court have,” said Elizabeth Hidalgo Reese, a law professor at Stanford. “He seemed to be principled in a certain way about the things he cared about.”
Justice Gorsuch, the first of President Donald J. Trump's three Supreme Court nominees, was known for his commitment to doctrines such as originalism and textualism, which generally pushed the court to the right.
He was the majority, for example, in the past period's cases eliminate the right to abortion, expanding gun rights, limiting efforts to address climate change And enlarge role from religion in public life.
In other cases, however, he has asked those same doctrines to forge his own path. His most high-profile majority opinion protects gay and transgender workers and Native American sovereignty.
Justice Gorsuch's recent opinions, and much of his other jurisprudence, are marked by a divergent legal outlook, which has at times combined sympathy for vulnerable plaintiffs with adherence to formal legal doctrine, whatever the consequences.
And he really wanted to do it himself.
“He didn't care one bit about what other people thought — his colleagues, the press, politicians,” said Daniel Eps, a professor of law at the University of Washington in St. Louis.
In 2020, Justice Gorsuch wrote the majority opinion on 5 to 4 decision states that most of eastern Oklahoma belongs to the Indian reservation.
It begins with an unforgettable passage: “At the Far end of the Trail of Tears lies a promise. Forced to leave their ancestral lands in Georgia and Alabama, the Creek Nation received assurance that their new lands in the West would be safe forever.”
He joined the liberal four-member wing of the court, including Judge Ruth Bader Ginsburg, who died months later.
After President Donald J. Trump appointed Judge Amy Coney Barrett to replace Judge Ginsburg, the court reversed course, narrowing last year's 2020 ruling to another 5-to-4 decision. Justice Gorsuch wrote an angry dissent.
“Where this court once stood firm,” he wrote, “is withered today.”
In November, when the Supreme Court arguments heard in the case of India's Child Welfare Act, Justice Gorsuch questioned the challengers' lawyers excitedly, with flashes of anger and frustration.
“That's absolutely not true,” he told one. To others, who argued that there were good reasons to doubt the wisdom of the bill, he said, “the policy argument might be better handled across the street,” referring to Congress.
His concurring opinion Thursday recounted in great detail the cruel mistreatment of Native American children through the centuries.
“In all its forms, the dissolution of Indian families has had a devastating effect on both children and parents,” he wrote. “It also presents an existential threat to the continued vitality of the tribe – something many federal and state officials have seen over the years as a feature, not a flaw.”
He concluded his opinion on a hopeful note. The court-enforced law, he wrote, justified at least three promises: “the right of Indian parents to raise their family as they please; the right of Indian children to grow up in their culture; and the right of the Indian community to refuse to fade into the twilight of history.”
“All that,” he wrote, “according to the original draft of the Constitution.”
Justice Gorsuch joined the Supreme Court in 2017, replacing Justice Antonin Scalia, who had died just over a year earlier. Meanwhile, Senate Republicans blocked Merrick B. Garland's nomination by President Barack Obama, then chief justice of the US Court of Appeals for the District of Columbia Circuit and now attorney general.
Justice Gorsuch has served on the 10th Circuit, in Denver, for more than a decade. He heard the news of Judge Scalia's death in the middle of the ski slope.
“I immediately lost my remaining breath,” he said said in a speech two months later. “And I'm not ashamed to admit that I couldn't see the rest of the way down the mountain because of the tears.”
On the Supreme Court, Justice Gorsuch has embraced the interpretive methodology of his predecessors originalism, which looks at the meaning of the Constitution when it was adopted, and textualism, which focuses on the wording of federal laws.
But there are more than a few areas where the two men, using similar approaches, reach opposite conclusions. Justice Scalia wrote the majority opinion in 1990 at Division of Labor v. Smithwho said that a neutral and generally accepted law could not be challenged on the grounds that it violated the First Amendment's protections of freedom of religion.
Justice Gorsuch wanted to overrule the decision. In 2021, he joined compatible opinion from Judge Samuel A. Alito Jr. who said so in the simplest terms: “Smith made the wrong decision. As long as it remains in the books, it threatens fundamental freedoms. And while precedent shouldn't be brushed aside, the trial error in Smith must now be corrected.
Justice Scalia was not very sympathetic to the rights of Native Americans. By one calculation, he voted in favor of tribal interests 16 percent of his time during his 30 years on the Supreme Court. Based on David E. Wilkinsa professor at the University of Richmond, Scalian Justice was “one of the most anti-Indigenous judges” ever to serve on the court.
Smith's decision involved Native Americans. Writing to the majority, Justice Scalia said that First Amendment guarantees on freedom of religion did not protect two Native American Church members who were fired from their jobs as drug counselors for using peyote during religious ceremonies.
On the other hand, at the appeals court, Judge Gorsuch in 2014 ruled that a Native American prisoner could sue for access to the sweat lodge, which Justice Gorsuch described as a “house of prayer and meditation,” under federal law enacted after Smith.
“Trying to separate the sacred from the secular can be a tricky business – perhaps especially for civil courts whose warrants do not cover matters of the divine,” he wrote.