Neil Gorsuch

• You’d think it would be easy to tell the difference between the two, but judicial scholars will tell you it’s more difficult than you might think.
• Even though they were viewing the same facts and working with the same laws, “It may well have been the most divided court in Supreme Court history,” Pritchett wrote at the time.
• His work led to a wave of scholars searching for personal attitudes and judicial ideologies as a determinant of Supreme Court voting behavior.

Measuring ideologies

• Their research, and work by judicial scholar Lee Epstein, shows many cases where justices crossed traditional judicial ideologies on Supreme Court rulings in the 2021-22 term.
• And according to SCOTUSblog, an average of 48% of Supreme Court rulings from 2010 to 2018 were unanimous.
• Scholars have noticed that labeling justices’ ideologies based upon their voting records in court rulings can involve flawed logic.

Times change

• Another challenge with labeling justices’ views is that politics change over time.
• “You probably would classify it as conservative because it seems to patronize and protect women.
• The justices unanimously struck down that conviction, saying it unconstitutionally restricted free speech based on the content of that speech.
• A conservative could also claim victory because the ruling restricts the power of local governments.

Shifting considerations

• For instance, Gorsuch votes along conservative lines on economic issues but on more liberal grounds on issues involving Native American rights.
• But he also wrote the majority decision in the 2020 ruling on McGirt v. Oklahoma, which upheld sovereignty promises the federal government made to several tribes in 19th century treaties.
• The justices themselves often reject the idea of judicial partisanship.
• Roberts again rejected the criticism: “We do not have Obama judges or Trump judges, Bush judges or Clinton judges,” he wrote in a statement to The Associated Press.

• Today it is home to more than 250,000 people – roughly comparable to the population of St. Petersburg, Florida, or Winston-Salem, North Carolina.
• Unlike those cities, however, 30% of households on the Navajo Reservation lack running water.
• While the average American uses between 80 and 100 gallons (300-375 liters) of water per day, Navajo Nation members use approximately seven.
• Since the 1950s, the Navajo Nation has pressed the U.S. government to define the water rights reserved for them under the 1868 treaty that created their reservation.

The centrality of water rights

• Water rights – the ability of individuals to use public water supplies – have always been a central issue in the U.S. West.
• Because all of the water in many western rivers has been fully allocated, these rights have a significant potential to displace existing juniors, or people who came later and have rights under state water law.
• In this context, it’s clear why the Navajo have called on the federal government for decades to specify their federally reserved water rights.

Does a ‘permanent home’ imply access to water?

• Thousands of U.S. troops roamed Navajo lands, destroying everything they could.
• After the Navajo surrendered in 1864, they were forcibly relocated 300 miles to Bosque Redondo, a barren area of eastern New Mexico.
• Many Navajo died on the “Long Walk,” and more perished over the next four years.
• Forty years later, the Supreme Court issued a ruling in Winters v. United States that became a guidepost for understanding tribes’ and nations’ federal reserved water rights.

What does the 1868 treaty require?

• In the ruling, Justice Brett Kavanaugh refused to find that the 1868 treaty satisfied the Winters framework.
• The 1868 treaty “reserved necessary water to accomplish the purpose of the Navajo Reservation.
• “Nor is it the role of the Judiciary to rewrite a 155-year-old treaty.” That job, Kavanaugh asserted, fell to Congress.
• In Gorsuch’s view, the promise of a permanent homeland, together with the history surrounding the treaty and background principles of Indian law, was enough to conclude that the 1868 treaty – following the principle set out in Winters v. United States – secured some water rights for the Navajo.

What’s next for the Navajo?

• Any judicially recognized rights for the Navajo from the Colorado River would reduce water available to the states.
• This ruling solidifies the states’ Colorado River water rights and indefinitely postpones resolution of the Navajo Nation’s claims.

• Michelle Cochran’s path to the U.S. Supreme Court began when she filed suit in federal district court to enjoin the SEC’s second round of administrative enforcement proceedings against her.
• NCLA also asserted that SEC violated Ms. Cochran’s due process rights by failing to adhere to its own rules and procedures.
• Today’s Supreme Court victory in SEC v. Cochran vindicates NCLA’s focus on unconstitutional practices that destroy people’s civil liberties.
• NCLA will make good use of this precedent to continue attacking unlawful administrative power at the SEC, the FTC, and other federal government agencies.”

• BiOWiSH Technologies, Inc. today announced the appointment of John Gorsuch, Director of Research and Development, to lead The Fertilizer Institutes (TFI) Microbiological Laboratory Methods Task Force.
• The formation of this task force is critically important to our industry, said Gorsuch.
• Gorsuch is looking for other SMEs to join the task force, saying: Microbial technologies are formulated with a diverse cast of beneficial microbes.
• Headquartered in Cincinnati, Ohio, BiOWiSH Technologies, Inc. is a global provider of biotechnology solutions for the agriculture, aquaculture, and environmental management industries.