Breaking Rank

Because so little is written about American Indians in the U.S. Constitution, questions about the status and limitations of tribal sovereignty have historically been resolved by the U.S. Supreme Court. While scholars regard the Rehnquist Court (1986-2005) as disastrous for the rights of Indians and tribes, the Roberts Court (2005 to present) has a checkered and less predictable record. Although one might think that rulings in Indian law cases would be determined along ideological lines (with Pro-Indian and Anti-Indian rulings issued by liberal and conservative justices, respectively) that is not the case. Instead, the outcome of virtually every ruling on Indian law cases decided by the Roberts Court is characterized by what I refer to as ideological "rank breaking." Here, conservative and liberal voting blocs splinter, as justices with the same political ideologies find themselves arriving at opposite conclusions.

While rank breaking is not unique to Indian law, I find that its frequency is significantly higher in Indian law cases than in non-Indian minority rights cases (p < .05), with justices breaking rank in 95% of all non-unanimous Indian law cases adjudicated by the Roberts Court. This phenomenon is puzzling, undertheorized, and illustrates that tools which rely on political ideology are not reliable metrics for understanding previous rulings or predicting future ones. To advance our understanding of decision-making in Indian law cases, this project will qualitatively code the written opinions (N=67) and oral arguments (N=45.75 hours) for the N=35 Indian law cases heard by the Roberts Court. This study addresses gaps in extant literature on federal Indian law and policy, has practical applications for tribal advocates, and the potential to make theoretical and empirical contributions to the study of law broadly. Further, as the Court has become younger and more conservative, gaining insight into the thought processes and behavior of recently appointed justices comes at a critical time in the nation’s history.

Preliminary data analysis based on qualitative coding of a selection of written opinions and oral arguments indicates that rather than political ideology, justices are instead guided by judicial philosophy (such as constitutional originalism) and that rank breaking is the result of variations in the interpretation and application of these philosophies. Therefore, in addition to parsing the difference between political ideology and judicial philosophy, the data suggest that we must also consider variation in the way that judicial philosophies are conceptualized at the individual level. These initial findings align with theoretical literature on liberalism and conservatism, including work that considers the dynamics of these respective ideologies in multicultural democracies.