Lawyerly Arguments

Writing about the Yoo memo, Jack Balkin reminds everyone that law-talking-guys “can make really bad legal arguments that argue for very unjust things in perfectly legal sounding language.” It’s an obvious point that for some reason needs restating once in a while. In my courses, I make this argument quite regularly in the context of the late 19th/early 20th century, when it was par for the course for social scientists and other putative experts to make comforting arguments on behalf of all sorts of atrocious phenomena (e.g., anthropologists and psychologists offering intellectual cover for segregation and lynching). So the dynamic that Balkin is describing can be applied to a number of other contexts, law being merely one of them. In a famous decision like Plessy, you actually see these forms of expertise working in tandem, with the majority opinion in that case relying on some bogus arguments about “racial instinct” drawn from evolutionary anthropology.

Unlike Scott, I don’t teach much about the Supreme Court, but to follow up on Balkin’s observation, here’s a good example of boring, lawyerly argument that pretty well disposed of American Indian treaty rights and utterly ruined the land base for several lower plains tribes like the Kiowa. It comes from Justice Edward White’s majority opinion in Lone Wolf v. Hitchcock (1906), one of the most important (if not the most important) case in American Indian law. Lone Wolf permanently altered American Indian law by affirming that the US — acting through Congress’ “plenary power” — could pretty much do whatever it wanted with respect to its treaty obligations so long as Congress, in exercising its “plenary power”:

The power exists to abrogate the provisions of an Indian treaty, though presumably such power will be exercised only when circumstances arise which will not only justify the government in disregarding the stipulations of the treaty, but may demand, in the interest of the country and the Indians themselves, that it should do so. When, therefore, treaties were entered into between the United States and a tribe of Indians it was never doubted that the power to abrogate existed in Congress, and that in a contingency such power might be availed of from considerations of governmental policy, particularly if consistent with perfect good faith towards the Indians.

So Lone Wolf provided Congress with virtually unlimited authority over Indian treaties, unencumbered by executive or judicial oversight, based on the laughable proposition that it would use its power rarely and forever with the interests of Native peoples in mind. Unlike Plessy or Dred Scott — two of its obvious peers if we’re measuring the injustice of a decision — Lone Wolf remains mostly undisturbed as a precedent. (I’m not sure if this is a measure of its obscurity, but for the sake of trivia if nothing else, I’ll note that the case doesn’t even have its own Wikipedia entry.)