With his retirement to begin on June 30 at noon, Justice Breyer leads a 5-4 split in Torres v. Texas Department of Public Safety, with the Chief Justice and Justice Kavanaugh, along with Justices Sotomayor and Kagan, joining him in holding that, by virtue of the states having ratified the Constitution, they agreed that their sovereignty would yield to the national power to raise and support the Armed Forces. Accordingly, Congress may exercise this national power to authorize private damages suits against nonconsenting states. Congress did just that when it passed the Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA), which gives returning servicemembers the right to reclaim their prior jobs with state employers, and authorizes suit if those employers refuse to accommodate veterans’ service-related disabilities. See 38 U. S. C. § §4301 et seq.

Mr. Torres is a former serviceman who suffered lung damage during his deployment to Iraq. Upon his discharge, he requested that his Texas state employer reinstate him to his previous job with an accommodation for his condition. The agency refused, and Torres sued. What is particularly interesting in this case, whose employment and tort law elements are limited to the states' conduct with respect to military servicemembers, is the fact that both the Chief Justice and Justice Kavanaugh have joined the jurisprudential liberals of the Court in a Breyer opinion that strikes a note that could have been taken from recent opinions of Justices Alito and Thomas regarding the historical provenance underlying constitutional law decisions. While courts generally are not permitted to hear private suits against states that have not specifically consented to waive sovereign immunity, Congress may abrogate such immunity pursuant to the Fourteenth Amendment or, as here, if they have agreed their sovereignty would yield to the exercise of a particular federal power as part of the “plan of the Convention,” that is, if “the structure of the original Constitution itself” reflects a waiver of a state's immunity. Justice Kagan's concurrence traces the Court's, and thus her own, evolution as to this methodology. Needless to say, while they accept the methodology in theory, the dissenters, per Justice Thomas, see both history and the statute differently, arguing (which some might find ironic given Justice Thomas's and Justice Alito's recent rejections of stare decisis) that a prior Court case concerning the Fair Labor Standards Act in which Congress was not held to have abrogated state law should control here.

Given his past decisions in cases involving the application of federal law to Native Americans, it is unsurprising to find Justice Gorsuch allied with the three liberal Justices in dissenting from an opinion delivered by Justice Kavanaugh and joined by the other four Court conservatives, holding that the federal government and a state (Oklahoma) have concurrent jurisdiction to prosecute crimes committed by non-Indians against Indians in Indian country. Once again, the Court has had occasion to deal with the ramifications of the fact that Oklahoma’s territory includes Indian country. Today's case, Oklahoma v. Castro-Huerta, is a child-abuse case brought by the state of Oklahoma. As followers of the Court, including readers of this blog, might recall, two years ago, the Court decided McGirt v. Oklahoma, 591 U. S. ___ (2020), holding that Congress had never properly disestablished the Creek Nation’s reservation in eastern Oklahoma. As a result, the Court concluded that the Creek Reservation remained “Indian country” where different jurisdictional rules might apply for the prosecution of criminal offenses. McGirt and several follow-on cases have led to the conclusion that the eastern part of Oklahoma, including Tulsa (the location of the instant case), is in Indian country, notwithstanding that the vast majority of the approximately two million people who live there are not Indians. Against a background of the dismissal of numerous state prosecutions in the wake of McGirt, the Court was compelled to decide which government or governments have jurisdiction to prosecute crimes committed in Indian country against Indians but by non-Indians. The Court now holds that there is concurrent federal and state jurisdiction.

Writing for the dissenters, Justice Gorsuch recalls the ancient case of Worcester v. Georgia, 6 Pet. 515, 561 (1832), in which Chief Justice Marshall established a centuries-old rule that Native American tribes retain their sovereignty unless and until Congress ordains otherwise. To Gorsuch, the majority in Castro-Huerta is unjustifiably yielding to a power grab by the state.

Look for several more decisions tomorrow.

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