Turtle Talk: Obama, the federal courts and tribal sovereignty

"Jeffrey Toobin’s new book of historical gossip about the Supreme Court is out, and a very good read.

First, President Obama’s views on the Constitution and the federal judiciary are important, especially to those of us Indians who think it’s important to have an Indian or two on the federal bench. He’s not an activist. The Warren Court and the first half of the Burger Court were activist courts for the liberals, and the second half of the Burger Court, bits and pieces of the Rehnquist Court, and now the Roberts Courts were (are) activist courts for the conservatives. Toobin shows how Obama’s views of the Supreme Court and the federal judiciary differ from many conservative judges and justices (I’m not sure I buy Toobin’s all-in argument that the Chief Justice is an activist — much of this book was written before the ACA cases). True social change cannot come from on high, dictated by the courts, but instead through legislation and governing (i.e., winning elections). Sam Deloria’s been saying this for years. The real fights in the 1960 and 1970s over the very existence of federal Indian law have given way to the fights over how to govern. All too often, I suspect (and perceived from some of my clients), tribal leaders think the best way to govern is to demand more and more sovereignty from the courts. It probably doesn’t happen a lot, but it does happen."

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Matthew Fletcher: My Reading of The Oath, the New Book on Obama and the Supreme Court (Turtle Talk 9/21)

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