The Supreme Court of the United States allows no cameras to record oral arguments, but they have allowed audio recordings. Wide access to the remarks of the Justices (excepting Justice Clarence Thomas, who is customarily silent) has combined with the 24-hour news cycle to create a cottage industry of pundits predicting outcomes.
On the Court’s docket, the case is Adoptive Couple v. Baby Girl. In the real world, it’s about the fate of a child we’ve come to know as Veronica.
As a judge, I’ve always considered the idea that I know better about somebody else’s child to be preposterous, excepting cases of abuse, where protecting the child from further harm is the obvious course.
Baby Veronica comes to the Court with more advantages than many children. A loving parent and an eager adoptive couple care enough to fight over her. Unlike many children, she will have adults who care for her regardless of the outcome.
Veronica is less lucky in that her life has become entangled in the political agendas of the adoption industry and three levels of government: federal, state, and tribal.
Then there is the 800-pound gorilla of federal Indian law: race. Justice Antonin Scalia recently referred to the Voting Rights Act as a “racial entitlement,” and the people who despise the Indian Child Welfare Act see ICWA the same way.
The conservative wing of the Court is Justices Scalia, Thomas, Samuel Alito and Chief Justice John Roberts. The liberal wing would be Justices Ruth Bader Ginsburg, Stephen Breyer, Elena Kagan, and Sonia Sotomayor.
Justice Anthony Kennedy, a conservative placed on the Court by President Ronald Reagan, is perceived to be the “swing vote.”
Indian lawyers know, however, that the conservative-liberal divide does not predict positions on federal Indian law.
The adoptive couple and the birth mother, or their lawyers, finessed the Indian Child Welfare Act in Veronica’s case by misleading the Cherokee Nation and gaining custody just as the Cherokee father was deployed to Iraq. It’s hard to overstate the advantage a custodial party gains by the simple fact of long-term custody. No judge wants to remove a child who has bonded in a loving home.
The South Carolina courts felt that ICWA gave them no choice. As a result of the South Carolina decisions, Veronica now understands she’s daddy’s girl, and the emotions cut in the other direction. The SCOTUS is unlikely to rule on emotion. For them, this is less about Veronica’s case than about all the cases to come.
The adoptive couple’s lawyer, Lisa Blatt, led with the strongest fact on her side: “This adoption no more broke up an Indian family…than (if) this Hispanic sole custodial birth mother had raised the child herself.” The father had been willing to surrender custody to the mother, but not to put Veronica up for adoption.
Justice Sotomayor began a colloquy with Blatt suggesting she was not buying the strongest fact on that side of the case when, suddenly, Justice Scalia chimed in “they’re taking the child away from (the father) even though he wants it.” * * * “And that—that is not the breakup of…an Indian family?”
Blatt stated: “He (the father) has a biological link that under State law was equivalent to a sperm donor.”
Scalia shot back: “He’s the father. He’s the father.”
Blatt then argued, “The birth father…expressly repudiated all parental rights…”
Justice Ginsburg interrupted “But he didn’t…he was prepared to surrender parental rights to the mother, but not to a stranger.” With this remark, Justice Ginsburg demonstrated a better command of the facts than the New York Times editorial page, which pointed out on the way to endorsing the adoptive parents’ side of the case, “Under the laws of both Oklahoma, where the biological mother lives, and South Carolina, a biological father is not allowed to intervene in an adoption once he has given up his parental rights.” It also escaped the Times’ notice that the Cherokee father has showed up “belatedly” because the attempt to take his child was timed to his deployment to Iraq.
Blatt asserted once more that the father had no standing at all, except to get notice of the hearing, leading Justice Kagan to ask “what are you supposed to do once you get notice?”
Justice Kennedy wanted to know “at what point, at what date did the Indian father lose the right to ask for custody?” Kennedy pointed out that the father asked for custody before the trial was over, once more belying the Times’ recitation of the facts.
Lisa Blatt was pretty seriously battered, but the next lawyer up was a heavy hitter: Paul D. Clement, formerly Solicitor General under President George W. Bush, and most recently seen in the SCOTUS representing the remaining bigots in Congress standing behind the Defense of Marriage Act.
Clement immediately turned the conversation back to the solid ground of the South Carolina courts removing Veronica from a situation where she was happy and loved.
Justice Sotomayor responded that the weight of that argument depends on the timeframe. Was it when the Cherokee father asserted his rights or two years later, when the case finally got to trial? If it’s not the former, she pointed out, “we’re going to give custody by estoppel.” This would mean that whoever gets the child first, wins.
Clement backtracked by pointing out that the SCOTUS could simply reverse for a new hearing on the best interests of the child. Sotomayor suggested this made little sense “after this child’s been…with her father for two years.”
Sotomayor: “I don’t want to be that judge.”
Clement tried manfully to get his argument back on the rails, only to be interrupted again by Justice Ginsburg: “Now the child has been some 15 months with the father. So if a best interest calculus is made now, you would have to take into account uprooting that relationship, would you not?”
Clement then steered the argument into the Kryptonite of federal Indian law, race:
“Now, the Justice Department back in 1978 recognized there were profound constitutional problems with the statute (ICWA). Then-Assistant Attorney General, later judge, Patricia Wald, told Congress that there were applications of the statute that raised equal protection problems because they treated people differently solely on the basis of race.”
He ended his presentation in the middle of the race discussion.
When the Cherokee father’s lawyer rose to speak, he quickly found himself tangling with Chief Justice Roberts. President Barack Obama’s administration also took the side of the father.
But, to the extent the remarks of the Justices at oral argument tell how they will stand, the case looks likely to go for the father. Sotomayor, Kagan, Ginsburg, and Kennedy, with the unlikely addition of Scalia, make five.
This case does not squarely raise the race question, whether any law giving any advantage to Indians violates the Fourteenth Amendment’s guarantee of equal protection of the law to non-Indians. The SCOTUS settled this issue in 1974 and again in 1977, so there is simply too much law there to overrule incidentally in a child custody case.
Still, the argument that the governmental status of Indians represents a racial disadvantage to non-Indians refuses to die. We should listen carefully to what the Justices have to say when our very existence as separate peoples is questioned.
Steve Russell, Cherokee Nation of Oklahoma, is a Texas trial court judge by assignment and associate professor emeritus of criminal justice at Indiana University-Bloomington. He lives in Georgetown, Texas.