I have much to say about Brackeen. I noted in my earlier post that the primary intellectual joust occurred between Justices Gorsuch and Thomas. Here, I'll start with Justice Barrett's majority opinion. In one sense, the majority opinion is underwhelming. The Court does not break any new ground with regard to the Indian Commerce Clause, fails to fully-explain the so-called plenary power doctrine, and adopts a really narrow conception of redressability to avoid tackling the equal protection issue. (Justice Barrett readily cited California v. Texas on that last point.) But if you read between the lines, Justice Barrett seems annoyed that the plaintiffs did not present a better case. It seemed like she was open to ruling in favor of the plaintiffs, but their lawyers didn't make the case.
Here's the tell. Search for the word "Petitioners." Over and over again, Barrett refers not to the actual Petitioners–that is, the families challenging ICWA. Rather, she is referring to counsel for Petitioners, and the arguments they make. Barrett consistently knocks the lawyers, led by the Texas Solicitor General, for failing to present fully-developed arguments. I felt like I was reading a Professor grading a student's paper. And Professor Barrett was not pleased.
Consider a sampling:
