If there is one thread running through the recent opinions of the Supreme Court’s conservative supermajority, it is mistrust of the federal government in favor of the states. In decisions ranging from abortion rights to wetland protection, the court has invalidated federal precedents and regulations, leaving enforcement, if any, to state legislatures and courts. In the few cases where some conservatives have joined liberals to uphold a federal statute, ultra-right holdouts have reflexively dissented — not always rationally — in the name of states’ rights.
In Haaland v. Brackeen, for example, the court rejected a constitutional challenge to the Indian Child Welfare Act of 1978 (ICWA), which applies when Native American children are being placed in foster or adoptive homes. Writing for a 7-2 majority, Justice Amy Coney Barrett explained that the law requires a state court “to place an Indian child with an Indian caretaker, if one is available,” even if the court believes that placement with a non-Indian family would better serve the child’s “best interest.” This preference was necessary, she continued, because “an alarmingly high percentage of Indian families [had been] broken up by the removal, often unwarranted, of their children” by nontribal public agencies.
In an eloquent concurring opinion, Justice Neil Gorsuch provided an extensive history of the “mass removal of Indian children from their families during the 1950s, 1960s and 1970s by state officials,” which was another “iteration of a much older policy of removing Indian children from their families” for over 150 years.
Justice Samuel Alito’s angry dissent, joined only by Justice Clarence Thomas, fulminated that the decision subordinates what state “family-court judges . . . determine to be in the best interest of a child to what Congress believed is in the best interest of a tribe.”
Alito’s reliance on state courts to determine a child’s best interest is unflinching but unjustified. He declares that ICWA “sacrifices” and “disserves” the best interests of “vulnerable children,” with no evidence beyond his own convictions. Put aside Alito’s insulting insinuation that tribal placements inevitably disserve and perhaps sacrifice children. Any attorney who has spent time in state family courts, as I once did, would know that even the most conscientious judges lack the time and resources to accurately predict how to benefit children in the future.
To put it bluntly, a best-interest determination is often a crapshoot, as judges make educated guesses based on their own experiences, preferences and biases. In the cases of Native American children, removal from their tribal homes had historically been little more than legalized kidnapping, which ICWA was enacted to remedy.
It may be easier to recognize judicial kidnappings — carried out for purported best interests, while discounting cultural and historical ties — in a non-U.S. context, undistracted by our partiality toward familiar institutions.
In 1858, a six-year-old child named Edgardo Mortara was living peacefully with his Jewish family in the ghetto of Bologna, then part of the Papal States under the direct rule of Pope Pius IX. Unbeknownst to his parents, Salomone and Marianna, Edgardo had been surreptitiously baptized as a baby by a Catholic nursemaid who feared that he was dying. After Edgardo recovered, the maid kept his baptism secret from Salomone and Marianna, but she mentioned it to friends. The story eventually reached Bologna’s Inquisitor, who feared the spiritual danger of allowing an officially Christian child to be raised by Jews.
The child was taken into custody by the Papal police and ultimately transferred to the adoptive custody of the Pope himself. Edgardo was raised in the Vatican, taught to renounce Judaism and would eventually become a priest.
Although the story seems astonishingly cruel today, the events were regarded as profoundly lawful, and indeed benevolent, by the relevant authorities of the time.
Salomone and Marianna were afforded extensive procedural rights, including representation by a canon lawyer. Edgardo’s presumed well-being, however, took precedence at every stage of the proceeding, from the removal from his home to his adoption by the pope. Although the term “best interest” had not yet been coined, the Papal authorities were certain that their judgments protected the child’s safety and security.
As one observer put it, Edgardo’s “eternal life” would be endangered if, as a baptized Christian, he was returned to the household of Jews. Regarding Edgardo’s ancestral culture, heritage, and religion, a Vatican newspaper explained there was “great benefit for him of being Christian, the singular grace that he had received through Baptism and, by contrast, the immense misfortune for his parents of being and wanting to remain Jews.”
We are more enlightened in modern times, and would never consider denigrating children’s religion to determine their best interests. But enlightenment must be accompanied by humility. Contemporary family court judges are no better able to free themselves from certain predispositions, or otherwise determine best interests, than in the 19th century.
In one well-known case, a South Carolina judge awarded Susan Smith custody of her two toddler sons, having found that the children’s best interest was to stay with their mother. The court was badly wrong. Exactly two weeks later, Smith strapped the boys into car seats and drowned them in a nearby lake.
In reality, there is no single best environment for every child, compared to which all others are inferior or victimizing, which a judge can determine with razor-sharp acuity. Despite Alito’s unwarranted confidence, it is nonsense to believe that tribal placements “sacrifice the best interests of vulnerable children.” On the contrary, there is no assurance that state family courts can unfailingly assess children’s best interests, much less weigh their own assumptions against the importance of maintaining a child’s cultural and tribal connections.
Steven Lubet is Williams Memorial Professor Emeritus at the Northwestern University Pritzker School of Law. He is the author of “The ‘Colored Hero’ of Harpers Ferry: John Anthony Copeland and the War against Slavery,” and many other books.