Law | Opinion

Steve Russell: Looking for an unbiased justice on Supreme Court

The U.S. Supreme Court in 2010: Top row (left to right): Associate Justice Sonia Sotomayor, Associate Justice Stephen G. Breyer, Associate Justice Samuel A. Alito, and Associate Justice Elena Kagan. Bottom row (left to right): Associate Justice Clarence Thomas, the late Associate Justice Antonin Scalia, Chief Justice John G. Roberts, Associate Justice Anthony Kennedy, and Associate Justice Ruth Bader Ginsburg. Photo by Steve Petteway / Collection of the Supreme Court of the United States

What should Indian Country look for in a nominee to the U.S. Supreme Court? Steve Russell, a member of the Cherokee Nation, offers his thoughts on the subject:
If a proposed Supreme Court nominee has pursued a legal career in Indian country, chances are he or she will have a track record showing an attitude toward Indians and Indian sovereignty. Lawyers not from Indian country seldom have reason to encounter federal Indian law and so their biases are not likely to be visible.

Every judge---every human---has biases, so the question becomes what the biases are and how the candidate intends to deal with them. Indians differ from other people in the degree to which our lives are directly affected by SCOTUS decisions and in the fact that federal Indian law is like a separate sandbox where most lawyers never get to play.

When President Obama puts forward a nominee to replace Justice Scalia, Indians would do well to inquire of other Indians living in the nominee’s legal stomping grounds whether the nominee’s biases run for us or against us.

If there are no Indians in the nominee’s history, then the best we could hope for is a lawyer who understands the role of a judge and is so honest you could shoot craps with her on the telephone and is not afraid of learning history outside of legal history.

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Steve Russell: The Originalist Sins of Justice Scalia (Indian Country Today 2/27)

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