Justice Kagan Schools Conservative Court Cadre on Gun Control

We have all watched the Supreme Court over the past 10 years, since the appointment of John Roberts as Chief Justice, march in lockstep. Four conservative Justices with but a single idea, to make sure liberal politicians and presidents can't interpret the law to benefit the least powerful among us. So, in judgment after judgment, these four Justices try to send the country back to the nineteenth century.

We are all waiting for a sea change here. We will take any rational decision as a sign that the SCOTUS has seen the light and will soon be giving up its fight to hold back the future. Abramski v. US is just such a decision.

Justice Kagan wrote the opinion and delivered some smarting comments on the minority opinion.

Writing for the conservative minority, Justice Scalia serves up yet another of the ridiculous opinions that we have become accustomed to. Scalia is the designated obfuscator of the group. His style of argument is the same as the sophists, who Socrates said, made the worse argument appear better. In brief, he decides his verdict before giving reasons for his decisions, then argues to reinforce his prejudice.

Here, in his dissenting opinion, Scalia offers up some truly choice nonsense. For instance, he argues that the court should accept the opinion of the bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF) as to how the law should be interpreted. He says we should not accept their opinion today, for they agree with Justice Kagan today, but we should take their opinion as of 1968, when they agreed with Scalia. Scalia is well-known for his historicism, frequently discussing what the founding fathers meant when writing the Constitution. In this case, he goes to an extreme, suggesting that the ATF ruling is correct because the ATF understood the intention of Congress when writing the law.

Kagan replies to this obvious nonsense by citing one of Scalia's own opinions, in which he wrote,

we have never thought that the interpretation of those [administrative agencies] charged with prosecuting criminal statutes is entitled to deference.

Another justice than Scalia might be embarrassed by having his own words thrown back in his face, but Scalia knows exactly what he is, namely someone who will use any argument that serves his purpose without concerning himself with whether it is true or false, or whether he has taken the opposite side of the argument at another time.

At another point in his dissent, Scalia says that the law distinguishes the actual purchaser of a firearm from the "deliveryman" or straw purchaser in the same way as if one of them had orange hair. Kagan chastises Scalia's attempt at humor as "wit gone wrong", because the law is not concerned with the color of a person's hair but with who is the actual purchaser of the firearm. The purpose of the law is to prevent people who are not eligible to purchase a gun from obtaining one. The whole purpose of the law would be defeated, says Kagan, if a person with a criminal record could hire a deliveryman with no record to purchase a firearm  and then take delivery. Deliverymen, says Kagan, are not hard to find. To which Scalia has no response.

Furthermore, adds Kagan, many recipients of straw purchases may themselves be eligible to buy firearms, but do not wish to use their own names. She cites a case,  US v Polk, 118 F. 3d, at 289, in which an eligible buyer used a straw purchaser to acquire an arsenal to use against the federal government. In Polk, the plot was thwarted by an informer. It would be pleasant to know that a similar plot could be thwarted by a weapons dealer obeying the law.

Scalia falls back on the "dictionary" method, in which a Justice looks up a word in the dictionary to decide what the meaning of the law is. The dictionary method is only of use as a last resort, since the legal system is based on published laws and court decisions, not the vagaries of dictionary compilers. Kagan once again rejects Scalia's attempt at obfuscation by saying the meaning of a law does not depend on the meaning of individual words, but on the laws "structure, history, and purpose."

Kagan's opinion is clear and concise. She explains the law and its purpose. She does not permit Scalia to spew any nonsense unchallenged. In future, this willingness to challenge a bully may give the other justices the courage to stand up to him as well.

Justice Sotomayor agrees with Justice Scalia on parental rights

This post concerns the case of Adoptive Couple v. Baby Girl decided by the U.S. Supreme Court (SCOTUS) in June 2013. The case reinforces the view of many that the Supreme Court is a bastion of white men where minorities and women count for little. Justice Sotomayor has quickly become an important spokesman for women, children, and minorities, as demonstrated in this case.

The baby girl in the case is the natural child of a member of an American Indian tribe, the Cherokee nation. SCOTUS got involved in this case because the father attempted to use provisions of a federal law, the Indian Child Welfare Act (1978) (the "Act") to gain custody of his daughter.

The opinion of the Court begins with a claim that the baby girl is classified as an "Indian" because she is 3/256 Cherokee. This statement is simply false. Baby girl is a citizen of the Cherokee nation because her father, Dusten Brown, is a citizen. The Cherokee nation does not ration citizenship on the basis of "blood quantum", but on derivation traced from an ancestor in the Dawes Rolls (1899-1906).

The male members of SCOTUS decided to determine citizenship in an entirely different, though not novel way, by the percentage of a person's blood that is Cherokee. The Cherokee themselves do not consider this important. The white settlers of America always considered this indication important, however. They referred to a person with only one Native American parent as a "half-breed", a term that soon became one of contempt, as if a person had chosen his own parents.

The classification of people by "divisions" of ancestry owes its origin to classification of African American slaves in pre-emancipation America. This classification made no sense then and the classification of Cherokees, officially recognized by this decision, makes no sense today.

SCOTUS apparently chose to declare that Baby Girl was not "really" Cherokee, since the Act was intended by congress to prevent precisely the sort of abuse from which this case arose, namely, the forced removal of a Native American child from its natural parents. Implicit in this decision is the belief that Native Americans are better off when deprived of any connection to their natural relatives and placed in good "white" families.

The three women members of SCOTUS disagreed with their male counterparts, led by Justice Sotomayor. The women (and Justice Scalia) determined that the government could not remove a child from its parent under the Act simply because the parent had never had custody of the child.

This decision is one more incident in the shameful history of white mistreatment of Native Americans. In response to this decision, the Cherokee Nation passed a law that natural children of Native Americans should be placed with their parents first, then with their Cherokee relatives in preference to any non-Cherokee adopters.

This action by the Cherokee Nation only reinforces the intent of the Act, however. Since SCOTUS managed, in this case, to ignore both the Act and the official position of the Cherokee Nation, it is highly unlikely that the present court would give more respect to Native American rights in any future rulings.