When Conservative SCOTUS Justices Are Liberal and Vice Versa (Except Neil Gorsuch )

American Thinker ^ | 05/30/2019 | Steven Kessler

[SeekAndFind]

On Monday, May 20, the Supreme Court decided in favor of an American Indian man, Clayvin Herrera, in Herrera v. Wyoming. Essentially, Herrera was found guilty of off-season hunting at Bighorn National Forest. Herrera believed he had the right to hunt there, citing the Treaty of Ft. Laramie. The treaty states that the Native Americans can "hunt on the unoccupied lands of the United States so long as game may be found thereon, and as long as peace subsists among the Whites and Indians on the borders of the hunting districts."

The Wyoming lower courts convicted Clayvin Herrera, a Crow tribal member, for violating state hunting laws, notwithstanding the promise in an 1868 federal treaty that the tribe and its members preserved the right to hunt on "unoccupied" land. The lower courts did not accept the validity of the treaty. However, the Supreme Court overturned the lower courts, siding with Herrera and recognized the authority of the treaty despite the passage of 150 years since its signing.

The Supreme Court is currently composed of conservative majority: five conservative judges sitting with four liberal colleagues. The liberals, Sotomayor, Kagan, Ginsburg, and Breyer, all voted in favor of Herrera. Four of the conservatives, Roberts, Kavanaugh, Alito, and Thomas, voted against Herrera. Neil Gorsuch was the lone conservative siding with Herrera, his vote being the decisive one.

Interestingly, the Court's ruling in favor of Herrera with all the liberal judges favoring the plaintiff and all but one conservative against him seems to position the ruling in favor of Herrera as a liberal one. CNN.com's headline for the case read, "Gorsuch sides with liberals as Supreme Court rules in favor of Native American rights in Wyoming hunting case." From this headline, the reader can interpret the issue as a classic liberal versus conservative argument

[SeekAndFind]

The conservative wing of the Supreme Court were a disappointment.

The issue of honoring the treaty authored over 150 years ago should be a no-brainer for the conservatives. To the conservative, the dead and the unborn are as much a part of civilization as the living, therefore they have all the same rights and considerations as we, in the present, do.

Every conservative should have honored the treaty because even though those who authored and signed it are long dead, they are still nonetheless with us here in the present. We must honor the treaty and treat those who signed it as though they were with us now. Violating the treaty would actively and legitimately wrong real human beings.

[taxcontrol]

Agree 100%

Courts should NOT be overturning legally and constitutionally passed treaties.

[USS Alaska]

I said this on another post; Gorsuch, me and four liberals on SCOTUS are agreeing.

Makes me want to take another shower, and I just got out of the shower, less than an hour ago.

ugghhh

[Rusty0604]

I agree.

[Bruce Campbells Chin]

Far too many people look at who won a case as being determinative of whether or not it was a "liberal" or "conservative" decision. But if you're an originalist/ textualist, the result is much less important than the reasoning you use to get there.

Best example of that is quintessentially "conservative" Justice Scalia striking down a law that prohibited the burning of the American flag. His explanation illustrates one of the reasons why he was the greatest Jurist of the last half century...at least:

The late Supreme Court Justice Antonin Scalia stressed that flag burning is protected by the Constitution — even if he doesn't think it should be. In 1989, the Supreme Court handed down a decision in Texas v. Johnson, which found a man named Gregory Lee Johnson had a Constitutional right to burn the American flag during the Republican National Convention.

Scalia sided with the majority in that case, which found the First Amendment protects political expression like setting the stars and stripes on fire. That doesn't mean the 78-year-old justice likes flag desecration, but it's the justices' job to interpret the Constitution, not to pass moral judgment, Scalia has said repeatedly.

"I hate the result [in Texas v. Johnson]," Scalia, who died earlier this year, said at a 2014 question-and-answer session sponsored by Brooklyn Law School. "I would send that guy to jail so fast if I were king," he added, then referring to Gregory Lee Johnson as a "bearded weirdo."

[TheTimeOfMan]

The way around this was the definition of “unoccupied”.

It is impracticable, to say the least, to allow a protected class to hunt wherever and whenever they want. I don’t give a crap if they ‘were here first’. Cause they weren’t. The Crows were aggressive and pushed other tribes out of that area - violently.

This creates real problems for people living in that area (I hunt there all the time).

I am part American Indian.

[Alberta's Child]

When I see 4 conservative justices voting the “wrong” way in a case that seems to be a no-brainer, I don’t just reflexively criticize them like a lot of Freepers do. Instead, I do some research to see what the legal arguments were on both sides of the issue.

If you did that, you’d learn a few things about this case. The language of the Treaty of Laramie may seem clear, but there’s a very solid legal argument over what exactly the term “unoccupied lands under Federal control” meant at the time and whether that term applies any longer to the Bighorn National Forest.

[DaiHuy]

Boldt decision redux, only this time it gave the NA’s permission to hunt whenever they please. Since Boldt Puget Sound Salmon fishing has gone to hell in a hand basket. The natives are allowed to net rivers and creeks. Fish size and populations have dwindled considerably.

[Phlyer]

[T]here’s a very solid legal argument over what exactly the term “unoccupied lands under Federal control” . . .

I thought the whole "living" and "dead" argument was irrelevant. There is a law (which a treaty is). What does it say? When it was written (unless subsequently and officially modified or rescinded) is irrelevant. Who wrote it is irrelevant. If it is in effect, then the courts should apply it - as written.

More than that - they should apply it in the simplest and most direct reading of the written words. In this case, "unoccupied lands under Federal control" is pretty straightforward. Is there anyone living there / farming there / mining there? If not, why would we call it occupied? And National Forests are definitely under Federal control.

I will answer my own question with the only issue of fact that I did not see in either the referenced article or other postings: We could call it "occupied" if there were people living close enough that hunting represented a danger to them from either direct-path or ricocheted bullets. This is a consideration that does evolve with time both in that 'civilization' might encroach on previously clear zones and that today's bullets travel farther than black-powder rifles could manage.

[lurk]

So, it’s a tribal member hunting. He will harvest one or a few critters per year. How many thousands more will get biffed on the highway?

[zeugma]

That doesn't mean the 78-year-old justice likes flag desecration, but it's the justices' job to interpret the Constitution, not to pass moral judgment, Scalia has said repeatedly.

Sadly, this is why ultimately, conservatives will lose everything, because the liberals simply do not believe it. They think it is their job to judge Constitutional issues based on their ever-changing personal beliefs.

[Alberta's Child]

The legal argument that 4 justices accepted was that at the time the treaty was signed, the term “unoccupied” referred to Federal lands that were legally established as territories and had not been admitted to the U.S. as states.

And if National Forests really are under Federal control — as it was defined in the 1870s — then why are hunters in the Bighorn National Forest subject to WYOMING hunting regulations?

[lepton]

The issue of honoring the treaty authored over 150 years ago should be a no-brainer for the conservatives.

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The treaty had conditions for the specific privilege granted. The issue isn’t at all over whether the Treaty itself was valid. It was over whether the conditions for the conditionally-granted privilege still existed.

I think the arguments are less than straightforward, and there is plenty of room for difference, but that the balance tips away from the privilege still being relevant.

[Alberta's Child]

The hunter (Herrera) in this case was part of a group of hunters — and Herrera was the only one who was a Crow Indian.

[Midwesterner53]

The treaty is clear and the decision was correct.

[9YearLurker]

This clown doesn’t even bother to address the argument of the conservative Justices, which is that the original treat gave them access so long as the land was unoccupied, but once a national park was established there, the land was occupied anf so not free for their use.

[Notthereyet]

“I said this on another post; Gorsuch, me and four liberals on SCOTUS are agreeing.”
____________________________________

Imagine how GORSUCH must have felt!
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That said, I cannot begin to fathom why the Conservative Justices did not decide to honor the treaty!

[Governor Dinwiddie]

#11: "So, it’s a tribal member hunting. He will harvest one or a few critters per year. How many thousands more will get biffed on the highway?"

Exactly. There was no compelling Governement interest to drop the hammer on an Indian who was only doing what his culture has been doing for tens of thousands of years, on land that Indians have occupied for tens of thousands of years.

Ahh, but he took the King's deer! </sarc>
 

[lepton]

And if National Forests really are under Federal control — as it was defined in the 1870s — then why are hunters in the Bighorn National Forest subject to WYOMING hunting regulations?

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That’s a whole different set of rulings. Ones mentioned in an earlier version of this article.