Scalia on the Shutdown

October 3rd, 2013

Justice Scalia had this to say about the elected branches of our government:

Scalia said it wasn’t his business whether it was worth shutting down the federal government because of the battle involving the new health care law.

“I have a deal with the Congress. I leave them alone. They leave me alone,” the judge said.

And this on Adoptive Couple v. Baby Girl:

After another question, the judge talked about the most difficult decision he’d had to make on the bench.

Scalia said he’d had to follow the law and not his own values in a case involving a Native American child born out of wedlock who was adopted off a reservation without a tribal counsel’s consent.

“We had to take the child away from the rancher,” he said of the adoptive family. “…That really rubbed me against the grain.”

Update: A friend writes in to tell me Scalia was not writing about the Baby Girl case. The title was also modified. Adam Liptak talks about that case here:

“It was pretty early on in my time on this court,” he said. “We had a case in which a very wealthy rancher and his wife had adopted a child of a young man and woman on an Indian reservation who had had the child out of wedlock. And they gave the child to the rancher to raise.”

A state court in Mississippi had approved the arrangement. But a federal law, the Indian Child Welfare Act of 1978, required tribal courts rather than state ones to decide.

“The kid was, I think, 5 years old or so” by the time the case reached the Supreme Court, Justice Scalia recalled. “And we had to turn that child over to the tribal council. I found that very hard. But that’s what the law said, without a doubt.”

Justice Scalia’s recollection of the case, from 1989, was understandably a little hazy. It involved 3-year-old twins, and their adoptive father had died by the time the case was decided.

But he had the main point right. In various ways, the 1978 law he cited makes it hard to remove American Indian children from their parents, their tribes and their heritage.