Clarence Thomas Took a Swipe at My Dissertation Research in a Decision. Here's Why He's WrongRoundup
tags: legal history, Supreme Court, originalism, Clarence Thomas, Native American history, Tribal Sovereignty
Gregory Ablavsky is the Marion Rice Kirkwood Professor of Law at Stanford Law School and professor of history (by courtesy) at Stanford University. He is the author of Federal Ground: Governing Property and Violence in the First U.S. Territories.
When, a decade ago, I was a graduate student toiling away on my dissertation, I could not have imagined that Justice Clarence Thomas would one day devote a lengthy footnote in a Supreme Court opinion to arguing why my obscure historical research was wrong. But that is what happened in the court’s recent decision in Haaland v. Brackeen. By a 7–2 vote, the court upheld the Indian Child Welfare Act (ICWA)—a critical federal law that provides procedural protections for Native children when their parents are unable to care for them—against a long-standing campaign begun by right-wing think tanks to overturn it.
Unfortunately, Brackeen doesn’t fully end that campaign against ICWA, which has been going on longer than I’ve been an academic. The conservative organizations behind the case have already pledged to find new plaintiffs to bring the equal protection claims that the court avoided on standing grounds—litigation that Justice Brett Kavanaugh’s (lone) concurrence invites. But Brackeen is still a hugely significant, and critical, victory. The Brackeens and Texas brought a laundry list of constitutional challenges to the law, and many of them succeeded in the 5th U.S. Circuit Court of Appeals. But this very conservative Supreme Court flatly and decisively rejected those claims. That’s a big win.
My involvement in the case stems from my work as a historian of the legal relationship between the United States and Native nations—what was known as “Indian affairs.” Back in 2015, while still a student, I wrote an article on the constitutional history of federal authority in this area. In it, I critiqued Justice Thomas’ musings in his 2013 concurrence in Adoptive Couple v. Baby Girl that ICWA exceeded the original understanding of congressional power. I wrote that article for a simple reason: After several years digging into the archival materials for another project, I knew that Thomas’ opinion rested on a law review article by Robert Natelson that had glaring, objective errors in evidence. It seemed important to me to try to set the historical record straight as best I could.
Years later, Brackeen ended up turning partly on this historical question. As Slate has traced, the lead-up to the case featured the bizarre experience of having Natelson respond to my scholarly critique of his article by labeling me “shyster-like” and launching an all-out (and, at least to my mind, surprisingly easily disproven) assault against me. And in Brackeen, Justice Neil Gorsuch’s lengthy concurrence and Thomas’ equally lengthy dissent recapitulated this kerfuffle (without the ad hominem attacks, fortunately). In a sense, their debate was an originalist battle over the proper interpretation of the historical evidence.
I can’t claim to be an impartial observer here, since Gorsuch relied on my work and amicus brief—as well as the work of other important scholars like Matthew Fletcher, Wenona Singel, Michalyn Steele, Robert Clinton, Christopher Green, and a historians’ amicus brief authored largely by Maggie Blackhawk—to rebut Thomas. But this battle left me with two broader thoughts—one about Thomas’ dissent, one on Gorsuch’s concurrence.
First, on Thomas: I don’t need to add the latest critique on how originalism is often results-oriented, but I do think his dissent offers an interesting reflection on how it functions in practice. Originalism rests on the premise that, properly interpreted, history can sometimes offer objective and correct answers to legal questions. And, although I am at best agnostic on originalism as a constitutional theory, my article, and my work more generally, attempted to take that premise seriously. I have spent years immersed in the relevant sources, and written extensively on the historical question at issue; I have professional historical training; and I spoke directly to the kinds of legal questions that lawyers often complain that historians don’t care about.
None of this means that I’m necessarily right. What it does mean is that I have done the work. Even for originalist inquiries—like, say, the meaning of “commerce”—history is not the same as law; there is not some carefully cabined, narrow set of relevant sources. Mastering historical materials requires years of labor. And so it is not exactly comforting to see that, over the past few months, Justice Thomas seemingly dispatched his law clerks to do some full-text searches and then cut and pasted the results. (Perhaps most galling were Thomas’ multiple citations to sources that I am 99 percent certain were surfaced through my research.) The resulting dissent mostly just doubled down on the conclusions Thomas had reached 10 years ago, including citing Natelson, while almost willfully pretending that the very substantial contrary evidence referenced by Gorsuch simply did not exist. If we’re going to be originalists, you’d hope that decisions dramatically altering current law would rest on a sturdier footing.