Three members of the Notre Dame Law School faculty were cited in U.S. Supreme Court opinions issued on June 15.
Justice Neil M. Gorsuch cited two papers written by Notre Dame Law professors in his dissenting opinion in Lac du Flambeau Band of Lake Superior Chippewa Indians v. Coughlin. The 8-1 majority decision in Lac du Flambeau held that Native American tribes are not immune from the automatic stay of the U.S. Bankruptcy Code. Gorsuch dissented, noting, “Until today, there was ‘not one example in all of history where [this] Court ha[d] found that Congress intended to abrogate tribal sovereign immunity without expressly mentioning Indian tribes somewhere in the statute.’”
He cited a paper co-authored by Anthony J. Bellia Jr., the O’Toole Professor of Constitutional Law at Notre Dame Law School, and Bradford R. Clark, the William Cranch Research Professor of Law at the George Washington University Law School. The paper written by Bellia and Clark, “The Law of Nations as Constitutional Law,” was published in 2012 in the Virginia Law Review.
In the same dissent in Lac du Flambeau, Gorsuch cited a paper by John N. Matthews Professor of Law Samuel Bray. The paper, “‘Necessary’ AND ‘Proper’ and ‘Cruel AND Unusual’: Hendiadys in the Constitution,” was published in 2016 in the Virginia Law Review.
In Haaland v. Brackeen, which upheld the constitutionality of the Indian Child Welfare Act, Gorsuch cited Notre Dame Law Professor Nell Jessup Newton in his concurring opinion. Newton, who served as dean of Notre Dame Law School from 2009 to 2019, is a prominent scholar of Indian law and the editor-in-chief of Cohen’s Handbook of Federal Indian Law, the only treatise on the subject.
Gorsuch cited Newton’s paper, “Federal Power over Indians: Its Sources, Scope, and Limitations,” which was published in 1984 in the University of Pennsylvania Law Review.