Turtle Talk: Justice Thomas and his radical vision of Indian law

Monday, August 29, 2011  

'Much is being made of Justice Thomas as a rising leader in the Roberts Court, which quietly says a great deal about the incredible conservatism of the Court right now. Justice Thomas views on gun control, which former Chief Justice Burger would have labeled “fraudulent,” are now the law. Jefffrey Toobin’s New Yorker piece, profiled at SBM blog, notes that Thomas’s dissenting and concurring opinions long have espoused well-nigh radical notions of constitutional law, and are now being vindicated one after the other.

Justice Thomas’s radical vision of the law also has touched Indian law. In particular, Thomas has suggested two major changes to Indian law jurisprudence.

First, in White Mountain Apache, he wrote that the trust relationship was more properly viewed as a “guardian-ward relationship,” a view adopted to some extent by the Jicarilla Court just a few months ago.

Second, Justice Thomas has stated an interest in extending his onslaught on the commerce clause to the Indian Commerce Clause context. In United States v. Lara, he linked Lopez and Morrison to the Indian Commerce Clause."

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Justice Thomas’ Indian Law Vision (Turtle Talk 8/29)