Conference Report – November 21, 2017 Conference

On Monday, the Court issued orders from its pre-Thanksgiving Conference. It did not grant any new cases for full argument. In the most notable denial of certiorari, the Court declined to hear Kolbe v. Hogan, a challenge to a Maryland law that bans semiautomatic rifles and magazines. The law was passed in the wake of the Sandy Hook shooting and was upheld in a 10-4 en banc decision of the Fourth Circuit. As The Hill and The Baltimore Sun explained, the Fourth Circuit held that such military-grade weapons were not covered by the Supreme Court’s decision in District of Columbia v. Heller. Heller held that the Second Amendment confers an individual right to have a handgun in one’s home for purposes of self-defense. The only Second Amendment case the Court has heard since Heller is McDonald v. City of Chicago, which simply applied the Second Amendment, and the Heller holding, to the states. Commentators on both the left and the right have discussed this apparent lack of desire by most of the Justices to revisit the Second Amendment, although in June, Justice Thomas, joined by Justice Gorsuch, dissented from a denial of certiorari in on that basis.

On Monday, however, Justice Thomas dissented from the denial of certiorari in a case involving a different area of law, Upstate Citizens for Equality, Inc. v. United States. The Secretary of the Interior used the Indian Reorganization Act (“IRA”) to take into trust more than 13,000 acres of land, which had been under the state’s sovereign control for more than two centuries, for the Oneida Nation of New York. The Second Circuit upheld this action over the plaintiffs’ argument that this use of the IRA was an unconstitutional exercise of Congress’ power under the Indian Commerce Clause.

Justice Thomas said he would have granted certiorari to reconsider the Court’s Commerce Clause precedents, which, he said, courts are applying in a way that gives Congress plenary power to pass laws related to Indian affairs. Justice Thomas asserted that the Clause extends only to regulating trade with Indian tribes whom the state has not incorporated. The IRA, Thomas wrote, allows the Secretary merely to “take into trust land that an Indian tribe already owns.” Thomas expressed concern that the Second Circuit’s application of Supreme Court precedent showed how far the Court’s precedents interpreting the Clause have strayed from the original understanding. Under the precedents, Thomas said, “Congress could reduce a state to near nonexistence by taking all land within its borders and declaring it sovereign Indian territory…When our precedents permit such an absurd result, something has gone seriously awry. It is time to fix our error.”

This post was drafted by ISCOTUS Fellow Bridget Flynn, Chicago-Kent Class of 2019 and by ISCOTUS Co-Director and Chicago-Kent Professor Carolyn Shapiro.


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