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.
