Native women rallied at the U.S. Supreme Court and the U.S. Capitol on December 7, 2016, to draw attention to high rates of violence in Indian Country and the need for tribes to exercise jurisdiction over all offenders. Photo by Indianz.Com (CC BY-NC-SA 4.0)

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Supreme Court goes out with a bang as key justice departs

Wednesday, June 27, 2018

The U.S. Supreme Court will be undergoing another shakeup in the Trump era with the departure of a key member who has played a critical role in Indian law cases.

After 30 years as an associate justice, Anthony Kennedy announced his resignation on Wednesday afternoon. His decision gives President Donald Trump another opportunity to move the nation's highest court in a more conservative direction

"We will begin our search for a new justice of the Supreme Court," Trump said from the White House. "That will begin immediately."

"Hopefully, we are going to be pick someone who will be as outstanding," Trump said in reference to the retiring Kennedy.

Statement on Justice Anthony Kennedy. #SCOTUS pic.twitter.com/8aWJ6fWemA
— Donald J. Trump (@realDonaldTrump) June 27, 2018

Kennedy's announcement came just hours after he took part in the last public session of the court's current term. Though speculation was rampant in the morning about a possible retirement, he did not say anything from the bench, instead choosing to deliver a written letter to Trump. The court also sent out a press release about his decision, which is effective July 31.

“It has been the greatest honor and privilege to serve our nation in the federal judiciary for 43 years, 30 of those years on the Supreme Court,” Kennedy said in the release.

The development, with significant legal and political ramifications, comes at a crucial time for Indian Country. The court's current term, which began last October, has been an exceptionally busy one, with tribes and their advocates dealing with an unusually large number of petitions> on key issues affecting their sovereignty, their treaties and their homelands.

The tension was further heightened with the addition of five Indian law cases to the docket, the largest number in years. The most recent jolt came on Monday, when the justices agreed to hear a closely-watched treaty rights matter from Washington state.

But oral arguments in the case, Washington State Department of Licensing v. Cougar Den, as well as in Royal v. Murphy, a high-profile reservation boundary dispute, will take place after the court comes back to work in October, meaning without Kennedy.

Depending how quickly the Trump team can get someone nominated, and how fast the deeply-divided Senate can confirm his pick, it's possible Indian Country will see a new member on the court by that time.

"The Senate stands ready to fulfill its constitutional role by offering advice and consent on @POTUS @realDonaldTrump’s nominee to fill this vacancy. We will vote to confirm Justice Kennedy’s successor this fall," Sen. Mitch McConnell (R-Kentucky), the Republican majority leader in the chamber, asserted in a post on Twitter.

Associate Justice Anthony Kennedy of the U.S. Supreme Court. Photo: McGeorge School of Law

The October 2017 term

Despite the heavy workload of the October 2017 term, tribal interests have fared surprisingly well. Of the three cases decided since last fall, two were complete victories, though one came about by unusual means. And while the third matter hasn't been completely resolved -- it was instead sent back to Washington state for more proceedings -- the high court helped advance the ball by addressing a lingering sovereignty issue.

In Patchak v. Zinke, the court held that Congress can protect tribal homelands from litigation. The split was 6-3, with Kennedy going against Indian Country's interests in the decision, handed down on February 27.

But the outcome in Upper Skagit Indian Tribe v. Lundgren showed that Kennedy has been willing to go the other way too. In the May 21 ruling, he joined the 7-2 majority in clarifying that one of the court's precedents cannot be used to abrogate tribal sovereign immunity.

The unusual result of Washington v. U.S., a treaty rights case, however, shows how tribes often come perilously close to defeat at the nation's highest court. The views of one justice can spell success or failure for Indian Country.

Just a couple of weeks before oral arguments on April 18, Kennedy recused himself. It turns out he had participated in an earlier phase of the long-running dispute, which dates to the 1970s, when he served on the 9th Circuit Court of Appeals.

“It’s a fantastic day for Indian Country,” Willie Frank, the son of the late activist Billy Frank Jr., said after the Supreme Court affirmed a treaty rights victory for tribes in Washington state. Terri Hansen has more in YES! Magazine. https://t.co/B8W1zCJDjU
— indianz.com (@indianz) June 12, 2018

With Kennedy out of the picture, the remaining justices deadlocked 4-4, meaning they were unable to determine whether the state of Washington should be held responsible for failing to fix culverts that prevent salmon from returning to tribal fishing grounds. The tie, revealed on June 11, represented a victory for tribes because it affirmed a lower court victory in their favor.

But had Kennedy participated, tribes might have ended up losing because he could have delivered the fifth vote against them In Minnesota v. Mille Lacs Band of Chippewa Indians, the last blockbuster treaty case that went before the court, he was in fact part of the block of four justices who went against tribal interests.

The court's makeup has changed since the 1999 ruling but Kennedy hasn't. Writing on the influential Turtle Talk blog, professor Matthew Fletcher said the outgoing justice cannot be considered a "swing vote" in Indian law cases for one simple reason.

"Kennedy voted against tribal interests even more than Scalia," Fletcher wrote of his preliminary research into the jurist's record. That came as a bit of a shock because Antonin Scalia, whose death in February 2016 opened the door for Trump's first pick to the court, almost always went against tribes.

Still, tribes need all the votes they can get in what has become a hostile forum. Between 2006 and 2016, they lost nine out of 11 cases, according to the Native American Rights Fund, which maintains the Tribal Supreme Court Project along with the National Congress of American Indians.

The nine members of the U.S. Supreme Court. Front row, from left: Associate Justice Ruth Bader Ginsburg, Associate Justice Anthony M. Kennedy, Chief Justice John G. Roberts, Jr., Associate Justice Clarence Thomas, Associate Justice Stephen G. Breyer. Back row: Associate Justice Elena Kagan, Associate Justice Samuel A. Alito, Jr., Associate Justice Sonia Sotomayor, Associate Justice Neil M. Gorsuch. Kennedy's resignation from the court takes effect July 31, 2018. Photo: Franz Jantzen / Collection of the Supreme Court of the United States

The Supreme Court

Kennedy's pending departure leaves the Supreme Court with eight members: Chief Justice John G. Roberts, Jr., Associate Justice Clarence Thomas, Associate Justice Ruth Bader Ginsburg, Associate Justice Stephen G. Breyer, Associate Justice Samuel A. Alito, Jr., Associate Justice Sonia Sotomayor, Associate Justice Elena Kagan and Associate Justice Neil M. Gorsuch.

Roberts, Thomas and Alito are seen as the most conservative members of the court. They typically go against tribal interests in Indian law cases.

Ginsburg and Breyer fall somewhat in the middle, siding with tribes in some matters and against them in others.

Sotomayor and Kagan are considered the more liberal justices. In just about every case, they have supported tribes.

Gorsuch is the newest member of the court, having joined in April 2017 with unprecedented support from Indian Country. Tribes liked his record when he served on the 10th Circuit Court of Appeals -- he sided with tribes nearly 60 percent of the time in significant cases, according to the Native American Rights Fund.

But it's too early to tell whether the investment paid off. Gorsuch went against tribes in Patchak but was responsible for the favorable ruling in Upper Skagit so a pattern has yet to emerge.

The next justice

President Trump has promised to pick his Supreme Court nominees from a list he first developed during the 2016 presidential campaign. Neil Gorsuch came from that list.

Another prominent name on the list is Allison H. Eid, a Colorado jurist who is the wife of Troy Eid, an attorney who is well known for his advocacy on Indian issues.

Judge Eid was later nominated for a spot on the 10th Circuit, where Gorsuch served, and she was confirmed last November. There is nothing preventing Trump from elevating her to the Supreme Court.

Trump updated the list in November. It contains a total of 25 names:

Amy Coney Barrett of Indiana, U.S. Court of Appeals for the Seventh Circuit
Keith Blackwell of Georgia, Supreme Court of Georgia
Charles Canady of Florida, Supreme Court of Florida
Steven Colloton of Iowa, U.S. Court of Appeals for the Eighth Circuit
Allison Eid of Colorado, U.S. Court of Appeals for the Tenth Circuit
Britt Grant of Georgia, Supreme Court of Georgia
Raymond Gruender of Missouri, U.S. Court of Appeals for the Eighth Circuit
Thomas Hardiman of Pennsylvania, U.S. Court of Appeals for the Third Circuit
Brett Kavanaugh of Maryland, U.S. Court of Appeals for the District of Columbia Circuit
Raymond Kethledge of Michigan, U.S. Court of Appeals for the Sixth Circuit
Joan Larsen of Michigan, U.S. Court of Appeals for the Sixth Circuit
Mike Lee of Utah, United States Senator
Thomas Lee of Utah, Supreme Court of Utah
Edward Mansfield of Iowa, Supreme Court of Iowa
Federico Moreno of Florida, U.S. District Court for the Southern District of Florida
Kevin Newsom of Alabama, U.S. Court of Appeals for the Eleventh Circuit
William Pryor of Alabama, U.S. Court of Appeals for the Eleventh Circuit
Margaret Ryan of Virginia, U.S. Court of Appeals for the Armed Forces
David Stras of Minnesota, U.S. Court of Appeals for the Eighth Circuit
Diane Sykes of Wisconsin, U.S. Court of Appeals for the Seventh Circuit
Amul Thapar of Kentucky, U.S. Court of Appeals for the Sixth Circuit
Timothy Tymkovich of Colorado, U.S. Court of Appeals for the Tenth Circuit
Robert Young of Michigan, Supreme Court of Michigan (Retired)
Don Willett of Texas, Supreme Court of Texas
Patrick Wyrick of Oklahoma, Supreme Court of Oklahoma

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