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Notes -
In my effortpost, I referred to an old old comment of mine, where I said:
After having (mostly) read the opinions, if I'm judging by this metric, I have to say that Roberts' majority opinion is a fail. To be clear, I am not saying that the opinion is wrong. On the contrary, as the saying goes, the Supreme Court is not final because they're right; they're right because they're final. So, yeah, they're final, and so they're right. But I do not think the majority opinion cleared up the confusion.
I don't think he really cleared up what was going on in WKA. Primarily because for the critical step, he just did what the Court did in WKA - turn to Schooner (DRINK!). One of the primary areas of interest was, in turn, what Schooner did and how it should be understood. On this point, Roberts was somehow even less informative than WKA. He didn't even quote the entire critical passage! Didn't even get to the part about the "implied license" under which people enter the country. As I said in the effortpost, the Court wants the Full Schooner, but it doesn't want to engage with it. It doesn't even touch on the full panoply of hypos that Schooner touched on.
The second major confusing question is how anything works with Indians. Indian law is confusing, yo. He could have at least said, "Indians are weird, yo." But he didn't even do that. I think this is basically the one, crucial sentence:
Like, what counts as a "dominion"? What is it to be "under those dominions"? Does Roberts think it matters whether an Indian woman, carrying the child of an Indian man, wandered off the reservation and gave birth in non-tribal US territory? How does any of this work?
The biggest, most major sources of confusion are pretty much just swept under the rug.
I don't know that I buy the dissents, either. I at least felt like I learned some things from Thomas that I hadn't seen in the briefs/cases. He gave the most plausible explanation for what could have been the motivating reasoning behind the shift in language from the 1866 CRA and 14A, but I'm not qualified to assess the truth thereof. He really shines in making it visceral how confusing it is to read WKA. And I hadn't quite noticed in reading Fuller's WKA dissent that it could be read as agreeing with the majority that the child of a domiciled alien would be a citizen, but dissenting instead on the grounds that WKA, specifically, was not/could not be domiciled. I need to find time to go back and read it again; as of right now, I don't know whether I think this is a plausible reading or not.
I'd probably want to stew with it all and (re-)read some of the citations before saying who I find ultimately more persuasive. But I'm not sure either of them are "right" (as in, not the regular sense of right; ya know what? we've already covered this). That is, I'm not sure either view really provides a clear, convincing, comprehensive theory that fits all the pieces together and makes it less of an atrocious mess.
So I feel a bit better about my conclusion that the topic is an atrocious mess. I can take comfort that at least Kavanaugh agrees with me that the Constitutional question is "not straightforward". I'd like to also hope that Gorsuch was thinking something similar when, in his brief separate writing, he said, in a somewhat measured fashion, that he thought Thomas' view "better accords with the Clause's original public meaning". I'd like to remember his statement in oral arguments ("It's a mess"), and view him as agreeing with me that it's a mess, and then saying something along the lines of, "If the two best explanations for what's going on are Roberts' opinion or Thomas', I guess, if I have to, I'll take Thomas'." I'm not sure if that's where I'll end up after stewing with it longer, but it seems plausible.
Of course, the Constitutional issue being a 5-4 I think also supports my prior opinion that it is much messier than most people thought going into it.
Oh, and also of course, I feel a bit vindicated in my more recent prediction (in the effortpost here, rather than in my comment years ago at the old old old place) that we were likely not going to get a real, detailed, coherent opinion that cleared stuff up.
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