It’s too early to say for certain if President Donald Trump’s Supreme Court nominee Neil Gorsuch will sit on the country’s highest court. But if he does, a UND law professor says he could shift the court in at least one important way.
Grant Christensen is an assistant professor of law at UND’s law school, where he’s director of the university’s Indian law certificate program. He said Gorsuch’s addition to the court could have effects on Native American sovereignty laws.
“Certainly the tribes can’t control what happens in Bismarck or what happens outside of their reservation lands,” Christensen said. “But inside their reservations, they might be able to have more control over taxation, oil and gas extraction, even general police powers.”
Gorsuch, 49, was nominated by President Trump in late January to fill the vacancy created by the death of Justice Antonin Scalia. A graduate of Harvard Law School, Gorsuch holds other degrees from Columbia and Oxford. Gorsuch now sits on the 10th Circuit Court of Appeals -- based in Colorado -- and has had a history of “incredibly protective” opinions in favor of tribal sovereignty, Christensen said.
Comparisons to Scalia are an important part of how Christensen sees the nomination. The places where Gorsuch differs from his predecessor, Christensen explained, are what’s important for the future of the court. Of less immediate consequence are some of the opinions they share, such as their “textualist” approach to interpreting regulations -- reading a law’s meaning from the text of the law itself.
“Maybe in the area of Indian law, in particular, Gorsuch might be more similar to a Justice (Sandra Day) O’Connor than a Justice Scalia,” Christensen said. Besides his previous opinions, Christensen suggested Gorsuch’s Western ties likely have led him to consider Indian laws with more sympathy, while his would-be Supreme Court colleagues hail mostly from the East Coast.
Christensen said that doesn’t mean Gorsuch would predictably rule in favor of tribes but rather that his presence on the court could lead to “a more robust conversation” about tribal issues — and that there may be “more ways that he could be persuaded” to rule in favor of tribal sovereignty than Scalia.
Asked about the effects a Gorsuch appointment could have on an issue such as the Dakota Access Pipeline, Christensen said Gorsuch’s ruling on the matter would depend heavily on how a case is framed.
“The pipeline is a particularly difficult question, and I’m not sure the Supreme Court would get involved at all,” he said. Although he said North Dakotans like to think of the pipeline permitting process as a simple issue, “the actual legal questions are so much more nuanced than that. If it’s a question of ‘Did we follow the regulations,’ or ‘Can the tribe determine what happens on its land?’ Those are legally very different questions.”
Senators eye vote
Sen. John Hoeven, R-N.D., has heard everything he needs to hear about Trump’s Supreme Court nominee, while his Democratic colleague, Sen. Heidi Heitkamp, says she’s still weighing his resume.
“Judge Gorsuch will uphold the law rather than trying to legislate from the bench, thereby preserving the checks and balances created by our Constitution,” Hoeven said in a statement. “That approach empowers our people and preserves the freedoms and liberties envisioned by our forefathers.”
Heitkamp said she’s still reviewing Gorsuch’s testimony on Capitol Hill. In a discussion Friday with the Herald’s editorial board, she spoke about Gorsuch’s familiarity with public land and tribal sovereignty.
In an earlier statement, she also noted Gorsuch’s nomination comes on the heels of Judge Merrick Garland’s nomination by President Barack Obama for the same seat.
“Senate Republicans now say politics should never play a role in Supreme Court nominees,” Heitkamp said. “I agree, however, they refused to extend that same courtesy last year when they didn’t give Judge Garland such fair treatment, and instead broke historical precedent, forcing his nomination to languish for almost 300 days, by far the longest that a Supreme Court nomination has been held open.”