Clarence Thomas Went After My Work. His Criticisms Reveal a Disturbing Fact About Originalism.

Gregory Ablavsky, Professor of Law

(Originally published by Slate on June 20, 2023)

If judges are going to use history as their guide, they should probably try to get the history right.

When, a decade ago, I was a graduate student toiling away on my dissertation, I could not have imagined that Justice Clarence Thomas would one day devote a lengthy footnote in a Supreme Court opinion to arguing why my obscure historical research was wrong. But that is what happened in the court’s recent decision in Haaland v. Brackeen. By a 7–2 vote, the court upheld the Indian Child Welfare Act (ICWA)—a critical federal law that provides procedural protections for Native children when their parents are unable to care for them—against a long-standing campaign begun by right-wing think tanks to overturn it.

(Continue reading the opinion essay on Slate’s page here)