Stacy Leeds: 'Asterisk This'

Native legal scholar ponders sexist SCOTUS musings on her merry way to tribal court.

Editor’s note: Stacy Leeds, esteemed legal scholar, judge and kick-ass mom (you have to wear a coat in the bitter cold is the kind of forceful, caring advice we bet she’d share not only with a stubborn teenage boy but all of humankind) granted Indigenous Wire permission to reprint her below essay. Served up with “an Indian law twist” — a juicy one — she shares her thoughts on the ongoing “social media tantrums” (exceptionally sexist ones, yet she never uses the word) over President Joe Biden’s yet unnamed Black woman U.S. Supreme Court nominee.

(Indigenous Well)

by Stacy Leeds

The luxury of sipping morning coffee in a quiet house. With a roaring fire cracking in the fireplace, I look out the window at the frosty ground and the pink-ish color that remains on the river after the sunrise. It’s hard to find any fault with the world from this hill in the heart of the Cherokee Nation.

And then I made the mistake of catching up on the U.S. national news and “discovered” this tired yet constant reminder that many people in important positions still (consciously or subconsciously) categorically devalue their minority peers and colleagues. The precise language may not be “3/5ths of a person” or “merciless Indian savage,” but the same supremacy is alive and well in the modern legal profession. The inference? “Those people” are of “lesser” intellectual capacity and “those people” are not qualified. Same energy, different century.

Here’s what’s going on. There are these women. And one of them is probably going to be on the US Supreme Court for a very long time. And she is black. She is already being presumed to be a second class jurist and an unworthy justice, before her name is called or her resume published.

But here’s what I know about her: if she’s on the SCOTUS short-list, she is already a well-respected judge and/or lawyer. She is wicked smart. Not just “book smart.” She has supernatural emotional intelligence to immediately read people and situations and adjust accordingly, on a dime. She has gone through life taking tens of thousands of snapshots with her eyes and instantaneously converting those to retained mental notes. She is brilliant and mentally tough. She has relentless stamina.

She has paid her dues beyond what’s imaginable to most. She has worked over 80 hours a week for extended periods of time in her professional life while also carrying the invisible burden of whatever family dynamic she exists in. And she makes it all look easy. If she doesn’t, she fulfills his expectations that she just can’t handle it.

When she was in college, you looked at her and snarked off to your friends about how she only got into this college because she was a black woman (or insert your favorite “other”). Maybe you said it out loud, to her face. If you whispered it, it’s all the same, she still heard you. Even if you said it silently with your eyes, she totally heard you. You either wanted to wound her or didn’t care if you did. But in the end, you only empowered her.

And then the inconceivable happened. She outperfomed you. Repeatedly. Scored at or near the top of the class on anonymously graded law school exams. Later she got jobs you thought you were entitled to. Eventually she sat on a judicial bench and/or taught in a law school. And she gave a lot of talks and sat on many boards and did an insane amount of extra community service - mostly for free - maybe because she wanted to, but either way, she was expected to pay it forward for all the opportunties she has been “given.”

Every day, she attended meetings and hearings where she was the only person of color (and often also the only woman) in the room. She was always over-prepared, because she had to be. The professional world has no place for a mediocre woman of color. She must be a star. And when she is that superstar, people will come up to her after that keynote luncheon address and tell her how articulate she is. Clueless of how bad that actually sounds.

And now she is being considered for a SCOTUS appointment, a position you’d cut your left arm off to have. You can bet she has EARNED it, the incredibly hard way. But somehow you feel personally cheated for a position you aren’t even close to being on the radar for.

You aren’t mad about her, per se. You are mad that despite all the privileges you have, she is at your same level or above you. That’s the real rub. Maybe your privilege comes from having several generations of educated/powerful/rich people in your family. Or maybe you are truly a first generation college graduate from a pell-eligible family, and the only privilege you have is that you can walk into the office/courtroom/classroom and be presumed competent by everyone else in that room, before you utter your first word. But you don’t believe that you have any privilege at all. You are simply a self-made man who has worked his ass off to get where you are. As if, she hasn’t.

It might actually be a favor that she is singled out to compete with other black women for this one seat. Containment ends a true meritocracy. In legal education, we made our “Indian law” hire. We made our “race and the law” hire. In government, we seated that one Justice. Elected that Mayor. That one President.

For 178 years, the closed pool of candidates for SCOTUS appointments consisted exclusively of white men. All others need not apply. Especially the long haired freaky people. And let’s not pitch our tent in a fantasy land that the Supreme Court nominees are always the single most-qualified jurist in the United States at that one moment in time. They are and always have been, political appointments. By design.

Now we live in a society where everyone is (technically) allowed to read and attend the good schools and become lawyers. The Supreme Court is going to look different than it once did. That train has left the station. Someday there might even be an Indigenous person on the SCOTUS. Totally appropriate for a court that decides a disproportionately high number of cases that determine what powers/rights Indigenous people and their Nations ought to have.

Would I have preferred President Biden to just nominate the next justice so I could cheer for her (and this Nation) as she makes history as the first black woman U.S. Supreme Court Justice? Without the politics of a campaign promise, and a subsequent announcement that it WILL be a black women? Maybe. But I think it’s also good for folks to watch all the heads exploding right now. Air it all out. In daylight. Let the world see what the “others” can’t help but see. Every. Day.

In the meantime, I’m off to my workout and then an afternoon of researching/drafting a tribal court judicial opinion. It won’t be the best decision ever written in the history of humankind. But it’s an order of an actual court. Just like any other judge, working for any other court.

Unfortunately, with similar energy to that nasty tweet but more formalized, SCOTUS sure is skeptical of tribal courts and tribal judges. Because those tribal courts are just “special in nature.” It’s because an overwhelming majority of those judges are Native. And many are also Native women. A double whammy.

Those judges aren’t as capable of the same objectivity and independence and fairness as federal, state, county, city judges and therefore they shouldn’t have the same powers/jurisdiction. And even if that tribal judge went to the exact same law school as the state court judges a few miles down the road, you know how she probably got into that law school, right? Next you are going to sit there and tell me that half of a state called “Okla-homa” is somehow still legally “Indian country?” What in the world?

All jest aside, I’ll leave you with this quote from one of the moderate to left-leaning Justices from a SCOTUS opinion in the 2000s. He is talking about those “lesser” tribal courts to justify why their jurisdiction should be narrowed and reduced, as compared to the other “real” courts. As you can see, it’s totally objective.

When you insert different life experiences and different perspectives to the judicial decision-making process, then all these “truths” might not be so “self-evident.” And that’s what is so terrifying.

Leeds is the Foundation Professor of Law and Leadership at Arizona State University’s Sandra Day O'Connor College of Law. A citizen of the Cherokee Nation, she was previously the dean of the University of Arkansas School of Law — the first Native American woman to hold such a position. She has also served as a Muscogee Creek Nation district court judge and an appellate court judge for Prairie Band Potawatomi Nation, as well as the associate judge of the Kaw Nation's Supreme Court and the chief justice of the Kickapoo Tribe of Oklahoma's Supreme Court.

Editor’s second note: As if all of the above isn’t important enough reading for you on a Sunday morning, donuts are now also involved. The Turtle Talk legal blog is offering a free pastry to the first person to name the author of the SCOTUS quote embedded in Leeds’ post. We think they should open it up and give donuts to anyone who got it right without looking it up. Fair is fair.

And don’t cheat.