Justices agree to review constitutionality of Indian Child Welfare Act

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The Supreme Court on Monday added another high-profile dispute to what is shaping up to be a blockbuster 2022-23 term. The justices granted review in a quartet of cases challenging the constitutionality of a federal law intended to protect against the separation of Native American families. Supporters of the law contend that a ruling that invalidates the law could have significant negative consequences for both Native American children and tribal rights.

In Haaland v. Brackeen (consolidated for one hour of oral argument with Cherokee Nation v. Brackeen, Texas v. Haaland, and Brackeen v. Haaland), the justices agreed to review a ruling by the U.S. Court of Appeals for the 5th Circuit that invalidated portions of the Indian Child Welfare Act, a federal law enacted in 1978 that (among other things) establishes minimum standards for the removal of Native American children from their families and establishes a preference that Native children who are removed from their families be placed with extended family members or in Native foster homes. The court of appeals ruled that the provisions violate (again, among other things) the 10th Amendment because they “commandeer” – that is, impose duties on – the states. The federal government asked the Supreme Court to weigh in, which it agreed to do on Friday. The case will be argued in the fall, with a decision likely to follow sometime in 2023.

Also in Monday’s order list, the justices denied review in a case asking them to weigh in once again on the scope of the “ministerial exception,” which bars ministers from suing churches and other religious institutions for employment discrimination. Four justices, however, suggested that they might be willing to take up the case (or one presenting a similar question) in the future. The lawsuit was filed by Margaret DeWeese-Boyd, who sued Gordon College, a Christian college north of Boston, when she was not promoted to a full professorship. A state trial court ruled that, for purposes of the ministerial exception, DeWeese-Boyd was not a minister, because she did not have any religious duties, did not “actively promote the tenets of evangelical Christianity,” and did not call or otherwise hold herself out as a minister. A state appeals court upheld that ruling, prompting the college to go to the Supreme Court to ask the justices to take up two questions: whether a professor in DeWeese-Boyd’s position performs ministerial functions, and whether the First Amendment requires states to defer to a religious organization or church’s characterization of a position as ministerial when that characterization is made in good faith.

After considering the case at four consecutive conferences, the justices turned the college down. Justice Samuel Alito wrote a statement regarding the court’s decision to deny review that was joined by Justices Clarence Thomas, Brett Kavanaugh, and Amy Coney Barrett. The state court’s conclusion that DeWeese-Boyd was not responsible for “religious education” because she did not “teach religion, the Bible, or religious doctrine” was, in Alito’s view, “a troubling and narrow view of religious education.” But, Alito continued, because the college and DeWeese-Boyd disagree about whether the state court’s ruling is the kind of final judgment required for the Supreme Court to review her case, he agreed with the court’s decision not to weigh in at this time. However, Alito added, there is no reason why the college could not return to the Supreme Court if DeWeese-Boyd prevails in the trial court.

Justice Sonia Sotomayor dissented from the court’s denial of review in Holcombe v. Florida, which arises from James Holcombe’s conviction on racketeering charges. The case centers on the joint representation of Holcombe and three co-defendants by the same attorneys. Two of the defendants pleaded guilty and were key witnesses for the prosecution at Holcombe’s trial, where Holcombe’s (and their) lawyer cross-examined them. Before they testified, prosecutors suggested that the joint representation was a conflict that Holcombe could not waive, but the trial judge disagreed and allowed the men to testify with Holcombe’s lawyer continuing to represent them.

A state appeals court rejected Holcombe’s argument that his conviction should be reversed because of his lawyer’s joint representation of both him and his employees. It reasoned that Holcombe had not shown how the joint representation had actually affected his lawyer’s performance. Holcombe came to the Supreme Court in July, asking the justices to take up his case, but on Monday the justices denied review.

Sotomayor explained that she would reverse the state court’s decision even without additional briefing and oral argument. The Supreme Court’s precedents, she reasoned, required Holcombe’s conviction to be invalidated.

The justices will meet for another private conference on Friday, March 4.

This article was originally published at Howe on the Court.



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