My apologies for neglecting all the comments on the last post. It’s the travel thing this time. I’ll do my best to catch up. But I also wanted to pick up and what may prove to be a very important argument (or not-it is always hard to tell in advance.) Today–right now–the Supreme Court hears argument in Adoptive Couple vs. Baby Girl. There’s an excellent pre-argument summary here and I’ve written about the case before, too. Indeed, I had picked up on this case when the previous opinion (from the South Carolina Supreme Court) was issued.
As the pre-argument discussion I linked to makes clear, there are a number of issues here and lots of directions that the Court could choose to take. This is why it is hard to say whether it will (in retrospect) turn out to be an important case. It’s also a feature that makes me worry–not so much that the Court will do the wrong thing (though of course that is possible) but that the Court will do not appreciate the complexity and range of issues before it and will therefore unsettle the law in areas beyond what is before the Court.
Perhaps this last concern sounds strange–this is the US Supreme Court, after all and one might assume that they are wise and competent. But the truth is, many very fine federal judges (and many very fine federal judge’s law clerks) don’t have much exposure to/experience with family law. Family law is generally committed to the state courts and, even there, often is lower status law. (I suppose this is because there isn’t always money at stake and hence, not a lot of money to be earned?) In any event, the Supreme Court’s forays into family law are infrequent and some of the recent ones (Troxel, I’m thinking) suggest to me a lack of clarity about what’s going on.
One clearly complicating issue in this case is the passage of time problem. I’ve written about this a bunch of times in different contexts, but it isn’t always easy to find the posts. Some are here. The young girl in this case was adopted at birth–and thus never knew her genetic father. She lived with the adoptive parents (who by all accounts were fine parents) for the first period of her life–I think it was over two years by the time all is said and done. And that’s because the litigation took time to wend its way through the courts and, of course, she had to live somewhere during that time.
When the adoptive parents lost in the South Carolina Supreme Court the girl moved to live with her genetic father–who she had, up till that point, never known. And she’s been living there (with no contact with the former adoptive parents) since December 2011–well over a year now.
I’m quite sure that no one will be arguing that switching custody back and forth like this is good for a child. This might seem like a strong argument for leaving the child right where she is now–with the genetic father. And it actually might be a good argument if all you want to do I what is best for this one girl.
The problem is that the US Supreme Court did not take this case to decide what was best for one girl. That’s just not how they operate. It took the case to clarify some important issues of law. The core legal questions are about how ICWA (the Indian Child Welfare Act) fits in with state laws governing the rights of unmarried men who father children. Resolving them may depend on cool and bloodless doctrines like statutory interpretation. Proper analysis of these issues does not include any particular consideration what is best for this child. What I mean is that if the Supreme Court of South Carolina misinterpreted the law, then the decision ought to be reversed—and the fact that this means moving the child again shouldn’t matter to the outcome of the case.
But can it not matter? Really? It’s asking a lot to say that it will not matter at all to any of the justices. (I’m very curious to see if this question–of the particular child–comes up in argument. I’ll let you know if it does tomorrow.)
That’s just one small sliver of what might make this a tough case. There’s a larger issue, too–in general the treatment of the Native American tribes in the US Courts (and more generally in law) has been less than favorable. Indeed, I saw a quote yesterday suggesting that the tribes do even worse than prisoners–also not a favored group. One might be moved to correct for past wrongs by a more generous attitude here–but is that what courts should do? And at the same time one worries about perpetuation of past mistreatment.
All stuff to look for in the argument. Might be over by now, but reports will trickle out. I’ll write about it tomorrow.