Rule of Law

Conservative Justice Gorsuch echoes ‘woke’ historians in railing against historical injustices

Gorsuch, appointed by former President Donald Trump, differs from his conservative colleagues on some key issues, including Native American rights.

WASHINGTON — Supreme Court Justice Neil Gorsuch is a dyed-in-the-wool conservative appointed by Republican former President Donald Trump, but in a series of recent cases, he has spoken up about historical injustice in a way that seems at odds with Republican attacks on “woke” history’s being taught in schools.

That included his opinion Thursday when the court rejected a challenge to the Indian Child Welfare Act, a law intended to keep Native American families and communities together when children are in the adoption or foster care process.

Gorsuch’s concurring opinion was part history lesson and part explanation of his full-throated support for Native Americans.

He wrote about how Native American families were torn apart by federal and state officials’ attempts to assimilate them into Anglo-centric American society by eliminating their cultural ties to their tribes.

“In all of its many forms, the dissolution of the Indian family has had devastating effects on children and parents alike,” he wrote.

“It has also presented an existential threat to the continued vitality of tribes — something many federal state officials over the years saw as a feature, not as a flaw,” he added. His opinion was joined by two of his liberal colleagues: Justices Sonia Sotomayor and Ketanji Brown Jackson.

Chuck Hoskin, principal chief of Cherokee Nation, one of the tribes that defended the adoption law at the Supreme Court, said Gorsuch is “going to loom large over Indian Country cases for a long time” in part because he understands the complexities of Indian law.

“While he may possess a great range of views on a lot of legal issues, he seems to have the most solid understanding of federal Indian law of any justice of the modern era,” Hoskin added.

In other cases, Gorsuch has lambasted the Supreme Court’s own rulings that treat people living in Puerto Rico and other U.S. territories as second-class citizens and called out the torture of detainees held at Guantánamo Bay, Cuba. He has repeatedly voted in favor of Native American tribes in a series of different legal questions.

Those isolated writings, in which he is often joined by liberal justices, are in stark contrast to the bulk of his votes, in which he is closely aligned with the Supreme Court’s conservative majority. Last year he voted to overturn the landmark abortion rights ruling Roe v. Wade and to expand gun rights. He has also joined the majority in curbing federal agencies’ power to enforce environmental laws, among other cases in which the conservative majority prevailed.

Last week, Gorsuch dissented when the court on a 5-4 vote upheld a key provision of the Voting Rights Act, a law enacted to protect the rights of minority voters.

Smita Ghosh, a lawyer at the liberal Constitutional Accountability Center, said Gorsuch’s opinion Thursday showed a “robust, historically grounded explanation” for why the law was enacted.

It is unfortunate, she added, that Gorsuch “has not shown the same careful consideration of historical evidence” on other issues, including the power of federal agencies.

‘Hell of a drug’

Mike Davis, a conservative legal activist who served as a law clerk under Gorsuch, said it is easy to square his former boss’ disparate actions.

“He angers both sides from time to time, but he doesn’t care. His job is to figure out what the law is and apply it,” he said.

On Native American issues in particular, Gorsuch’s tenure as a federal appeals court judge in Colorado, where he handled cases involving tribes, most likely informed his approach, Davis added.

Ilya Shapiro, a legal expert at the conservative Manhattan Institute, attributed Gorsuch’s approach in part to his love of history and his commitment to the conservative legal theory known as originalism, which involves looking at the original meanings of laws as understood at the time they were written.

“He calls them as he sees them. A lifetime appointment is a hell of a drug,” Shapiro said.

Gorsuch has developed something of a reputation for a high-handed approach to judging, which has also seeped into some of his actions outside of court cases. He sparked controversy when, during the Covid-19 pandemic, he was the only justice not to wear a mask on the bench when everyone else in the courtroom was required to wear one and all the other justices did.

In February 2022 Gorsuch was again the center of attention when he barred the media from covering an event he appeared at in Florida hosted by the Federalist Society, a conservative legal group. Other prominent people appearing at the event included Florida Gov. Ron DeSantis, a Republican now running for president.

It is for those reasons that his votes with the liberal justices in which he makes statements that echo liberal criticism of the U.S. government’s historic misdeeds stand out.

In the 2022 Guantánamo case involving detainee Abu Zubaydah, Gorsuch wrote a dissenting opinion in which he called out the federal government’s insistence on maintaining secrecy about the treatment of prisoners even though it is widely known they were tortured.

“There comes a point where we should not be ignorant as judges of what we know to be true as citizens,” Gorsuch wrote. He then outlined in considerable detail how Zubaydah was tortured.

“This court’s duty is to the rule of law and the search for truth. We should not let shame obscure our vision,” he added.

In another 2022 dissenting opinion that touched upon the legal status of people living in the U.S. territory of Puerto Rico, Gorsuch called on the court to overturn a series of rulings called the Insular Cases, which embraced the idea that people in territories could receive different treatment from people living on the mainland.

Gorsuch wrote that the rulings “rest on racial stereotypes” and “deserve no place in our law.”

His attempts to draw attention to dark episodes in U.S. history also potentially put him in some tension with efforts by some Republican politicians, including DeSantis, to place new limits on how history is taught in public schools. Conservatives have frequently attacked the teaching of “critical race theory,” an academic concept based on the idea that U.S. institutions — particularly the justice system — and laws are permeated by racial bias.

Critics of the laws like the one enacted in Florida have said such measures could stymie the teaching of key events in U.S. history, like slavery and the civil rights movement.

But Davis, the former law clerk, insisted Gorsuch’s approach to history was consistent with the approach Republicans favor.

“It should be taught in schools,” he said of Gorsuch’s writings.