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29 posts from July 2020

07/31/2020

Donald Drakeman: Is Corpus Linguistics Better than Flipping a Coin?
Michael Ramsey

Recently published, in the Georgetown Law Journal Online, Donald L. Drakeman (Notre Dame): Is Corpus Linguistics Better than Flipping a Coin? (109 Geo. L.J. Online 81 (2020)). Here is the abstract:

Corpus linguistics offers the promise of “Big Data” solutions to difficult issues of constitutional interpretation. By searching the millions of words in COFEA, the Corpus of Founding-Era American English, scholars have reached what they have described as rigorous, reliable, and reproducible conclusions about the original meaning of the Constitution. These conclusions rely on unexamined assumptions about the nature of the database and the reliability of the methods employed for interpreting the data. This Article is the first to analyze those assumptions, and it shows why digital searches in COFEA are unlikely to be more accurate than flipping a coin. An understanding of these methodological assumptions will enable researchers to make the necessary adjustments to increase the odds of success in the future.

And from the introduction (footnotes omitted):

“Originalism is on the cusp of its own Big Data revolution,” declares Lee Strang, noting that “[f]or the first time, both a body of data of the Constitution’s original meaning and the technology to utilize that data are becoming available.” Legal scholars started this revolution by borrowing a fascinating tool from their colleagues in language, literature, and history—large digital compendia of written texts associated with the field of corpus linguistics2—with the aim of using targeted digital searches to discover the meaning of constitutional terms in the Founding era. Rather than relying on the limited information available in the few relevant dictionaries, or going through the painstaking process of finding and reading the statutes, legislative debates, newspapers, legal cases, novels, almanacs, and other materials making up the documentary record of the latter part of eighteenth-century America, scholars can perform computer searches in databases consisting of thousands of texts and millions of words. Originalism can now be “datadriven,” “scientific,” and “rigorously empirical.”

...

Strang is certainly right about two things: We have digitized collections of texts representing language use in the constitutional era and the technology to access them on a word-by-word basis. The remaining essential questions are whether those collections are genuinely representative and whether we have the necessary data-analysis tools to make sense of all of the resulting information in a way that clearly points towards an accurate understanding of the objective meaning of the text. As Strang observes, there are some cases where the technological approach may not eliminate the possibility of inaccuracy, and whether tools of corpus linguistics can deliver a single clear original public meaning will need to be evaluated on a clause-by-clause basis.

In practice, corpus linguistics searches for the Constitution’s original meaning have often sought to select one of two possible meanings. For example, is “religion” in the First Amendment limited to theism? Did the terms “commerce” and “emoluments” carry a broad or narrow definition? The goal has been to determine the answer objectively and empirically through a Big Data analysis of language use in the Founding era. For the sake of argument, and to highlight the key role of assumptions in applying this methodology to constitutional interpretation, I will propose an alternate approach to resolving lawsuits that has the advantage of being equally or more objective, while also being faster, cheaper, and a great deal less complicated: flipping a coin, for which the odds of an accurate answer to these kinds of binary questions is 50%. Moreover, as with other approaches to the search for original meaning, coin flipping would go a long way towards addressing one of the jurisprudential issues frequently cited by advocates of originalism—that is, the need to restrain judges from making decisions based on their own preferences. Despite its numerous advantages, coin flipping in cases of constitutional interpretation is normatively weak compared to the promise of scientifically based results. It is hard to imagine that an interpretive theory would be adopted by the Supreme Court if cases involving the interpretation of texts with contested original meanings would be decided by a coin toss or by any other method that could not make a better claim of accuracy than randomly being right half of the time.

Is corpus linguistics likely to be accurate more than half of the time? This Article will show that, in a number of important ways, corpus linguistics may not be up to the assigned task (at least yet), despite the sophisticated constitutional analyses that have appeared so far. The problems are not rooted in the impressive research done by scholars to date but in the historical and methodological assumptions they are making when they set out to use corpus linguistics databases for the purpose of constitutional interpretation.

Professor Strang's article is How Big Data Can Increase Originalism’s Methodological Rigor: Using
Corpus Linguistics to Reveal Original Language Conventions, 50 U.C. Davis L. Rev. 1181 (2017), available here.

07/30/2020

Ilan Wurman on what Originalism Conserves
Michael Ramsey

At Law & Liberty, Ilan Wurman (Arizona State): What Originalism Conserves.  From the introduction:

For many decades, the Supreme Court has assumed that the Constitution must change with the times. In the words of Justice William Brennan, “current Justices read the Constitution in the only way [they] can: as twentieth [now twenty-first] century Americans.” This notion of “living constitutionalism”—the idea that we aren’t strictly bound by the meaning a constitutional provision might have had when it was enacted—has resulted in landmark Supreme Court decisions in many areas of law. The Miranda rights made popular by television and the right to a government-paid criminal defense lawyer; the expansion of federal power under the Commerce Clause since the New Deal; the creation of independent administrative agencies; and the Supreme Court’s reasoning in Roe v. Wade and Obergefell v. Hodges—all arguably depend on living constitutionalism.

In response to some of these “liberal” decisions, conservatives articulated and advanced an alternative theory of constitutional interpretation in the 1970s and 80s: originalism, the commonsense notion that we are bound by the original meaning of the Constitution’s text, and that judges shouldn’t update that text’s meaning. But it would be a mistake to associate originalism only with its modern-day political defenders and abandon it to the extent to which it does not serve the interests of modern-day conservatives.

For one thing, originalism is not an invention of the 1970s; it was with us from the beginning, at least until living constitutionalism began to take root in the progressive era. Here is John Marshall in Gibbons v. Ogden: “As men whose intentions require no concealment generally employ the words which most directly and aptly express the ideas they intend to convey, the enlightened patriots who framed our Constitution, and the people who adopted it, must be understood to have employed words in their natural sense . . . .” And here is James Madison in an 1824 letter to Henry Lee: “What a metamorphosis would be produced in the code of law if all its ancient phraseology were to be taken in its modern sense.”

More significantly, the theoretical defenses of originalism have never depended on its political results although, to be sure, there is some connection between conservatism and originalism that is worth defending (as I shall explain shortly).

Rather, the argument for originalism can be established in two steps, or by answering two questions, both of which are largely apolitical ...

07/29/2020

Congressional Self-Delegation in FOMB
Chris Green

The PROMESA case from last month, Financial Oversight and Management Board v. Aurelius Investment, unanimously turned back an Appointments Clause challenge to the composition of the board governing Puerto Rico’s bankruptcy. I mentioned earlier that Justice Breyer treated subsequent history in a much more originalism-friendly way than he had for the Court in Noel Canning. But it seems to me that the FOMB runs very straightforwardly afoul of the Court’s cases forbidding congressional self-delegation: Chadha, Bowsher, and especially the application of Chadha and Bowsher to DC government--independent of the Appointments Clause--in Municipal Washington Airport Authority

Five of the six members of the FOMB are chosen by the President from lists composed by congressional leaders (two lists for the Speaker and one list each for the minority leader of the House and majority and minority leaders of the Senate). While Justice Breyer notes the procedure in passing (and Justice Sotomayor’s concurrence in the judgment gives more detail), the Court never explains why this sort of congressional self-delegation is OK under Chadha, Bowsher, and MWAA.

The power to compose the lists from which the President may choose is, of course, far more important than the President’s selection power itself. Imagine a Democratic President allowed to select a Justice from among President Trump’s list of Supreme Court candidates: it’s obviously not nearly as significant as the power to create that list in the first place!

The size of the congressional self-delegation in PROMESA isn’t the main issue, though. Rather, it’s just not the sort of ex officio power that Congress may give to the Speaker or other congressional officers under MWAA.  The Court explained straightforwardly in MWAA: “If the power is executive, the Constitution does not permit an agent of Congress to exercise it. If the power is legislative, Congress must exercise it in conformity with the bicameralism and presentment requirements of Art. I, § 7.” Indeed, the FOMB Court notes at page 19 that MWAA was a Chadha/Bowsher case, rather than an Appointments Clause one. But if the Chadha/Bowsher ban on congressional self-delegation applies even to appointments that might fall outside the Appointments Clause, it condemns the FOMB even if the Court is right about whether its members are “officers of the United States.” 

Larry Solum's Legal Theory Lexicon on "The New Originalism"
Michael Ramsey

At Legal Theory Blog, Larry Solum's Legal Theory Lexicon has an updated entry for "The New Originalism."  From the introduction:

This entry in the Legal Theory Lexicon focuses on what is called "New Originalism.” Of course, labels like this are just names that carve up the theoretical landscape. For our purposes, "New Originalism" refers to a cluster of originalist theories that reject a set of ideas from older originalist theory, including (1) original intent originalism (in the form that focuses on the application preferences of the Framers) and (2) the idea that the application beliefs of the Framers are binding. 

Many New Originalist theories also endorse the following two ideas: (1) the claim that the original meaning of the constitution is its public meaning, and (2) the distinction between interpretation and construction. But some theorists who are called "New Originalists" endorse other theories of original meaning, such as "original methods originalism" and reject the idea the there the constitutional text is substantially underdeterminate.

I'm not sure if this description is revised from earlier versions of the Lexicon, and I'm not sure if it's the best way to describe "New Originalism."  If it is, then the founder of "New Originalism" is really Justice Scalia, in his 1986 speech "Original Meaning" (available, among other places, in Christopher Scalia and Ed Whelan's compilation of his speeches, "Scalia Speaks," p. 180).  Among other things, on this definition "New Originalism" is not so new.  But also, I think the newer development in originalist theory is the idea of the interpretation/construction distinction, which Professor Solum says some but not all "New Originalists" endorse.  So in contrast I tend to think of "New Originalism" as specifically referring to the idea of the interpretation/construction distinction.  People like Justice Scalia, who embraced original meaning but rejected construction, don't really seem like "new" originalists to me. 

I would suggest (as I have in the past) three categories of originalism:

(1) Original intent (for example, scholars such as Larry Alexander and Richard Kay, plus Judge Bork)

(2) Original meaning (Justice Scalia, scholars such as Michael Paulsen, Gary Lawson, Michael Rappaport and John McGinnis)

(3) Original meaning plus interpretation/construction distinction (scholars such as Randy Barnett, Keith Whittington and Professor Solum).

I would call only category (3) "New Originalism" (although, as the Lexicon says, these are "just names that carve up the theoretical landscape," so as long as it's clear how they are being used, the particular labels do not matter so much).

The entry continues with a number of additional important points, including this one: 

The New Originalism has given to a new set of disputes, both within originalism and between originalists and nonoriginalists.  From the conservative side some theorists who might be called "new originalists," have focused on restraint and constraint. John McGinnis and Michael Rappaport have argued that constitutional construction is unnecessary. Their argument reflects their distinctive version of originalism, “Original Methods Originalism.” They argue that by using the original methods of constitutional interpretation, judges can eliminate or almost eliminate ambiguity and vagueness.

A different approach to the problem of constraint has been developed by Gary Lawson and Michael Paulsen. They each argue that the problem of vagueness can be solved by a principle of judicial restraint. When the text is vague or ambiguous, judges should defer to the decisions made by elected officials. So even if there is a “construction zone,” there is no need for judicial discretion or morally informed decision making.

Again repeating what I've said before, I don't think the Lawson/Paulsen position here is properly understood as deference to the decisions of elected officials.  Rather, I think it is a matter of authority.  Courts have authority to override the decisions of elected officials only when the Constitution provides that authority.  When the Constitution is indeterminate, that authority is lacking.  Judges don't "defer" to anyone; they simply fail to find the authority to act. (Of course, it is a matter of dispute how indeterminate the Constitution must be for judges to lack authority to act.)

This is also a key point:

Another line of progressive criticism suggests that the New Originalism no longer provides sufficient constraint and restraint to serve as a real rival for Living Constitutionalism. Thomas Colby has made a version of this argument, and a similar argument has been advanced by Peter Smith. Together, Colby and Smith have also argued that new versions of originalism are so varied in content that it no longer makes sense to think of originalism as a coherent constitutional theory.

I think this criticism has some force against some versions of New Originalism (as Professor Solum defines it) but less against others.

07/28/2020

Francis Joseph Mootz: At Play in the Fields of the Law
Michael Ramsey

Francis Joseph Mootz (University of the Pacific - McGeorge School of Law) has posted At Play in the Fields of the Law (The Philosophy of Play (Jeremy Sampson, ed., Vernon Press 2021, forthcoming) (17 pages) on SSRN.  Here is the abstract:

Hans-Georg Gadamer famously uses the metaphor of play to illustrate the ontological nature of understanding. Under his account, a reader seeking to understand a text brings her horizon of pre-understanding into dialogue with the unfolding effective-history of the text. The resulting to-and-fro, which exhibits “the logic of question and answer,” is playful in nature. Prejudgments are refined, amended or abandoned in the process. Gadamer concludes that the best experience of coming to understand is ordinary conversation, in which two participants learn through a ludic give-and-take.

Gadamer also argues that legal practice has exemplary significance for his philosophical hermeneutics, which would appear to mean that legal practice is an estimable instance of play in action – of playfulness. But, can we take this claim seriously? Would any person who has been caught up in the justice system regard law as “playful” and “conversational?” Sandy Levinson offers a witty retort: “As Chairman Mao pointed out, a revolution is not a tea party, and the massive disruption in lives that can be triggered by a legal case is not a conversation.” Robert Cover emphasizes the point more dramatically with one of the most noteworthy opening lines of a law review article: “Legal interpretation takes place in a field of pain and death.” In this chapter I reject the criticism that Gadamer fundamentally misunderstands the serious nature and effect of legal interpretation in his work and argue that legal practice does indeed exemplify his ontological claim that understanding results from being-at-play.

I unfold my argument in five parts. First, I provide a close reading of Gadamer’s account of play to explore the contours of this central metaphor. Second, I discuss how Gadamer situates the phenomenological experience of “being played” within a larger frame. Play is not just a random experience of giving oneself up to an amorphous playful exchange. Rather, it is structured such that the play is experienced as an event, often in a ritualistic frame. There is a seriousness about play to which we must attend. Third, I connect play to legal practice. Gadamer does not directly describe how legal interpretation is “playful,” and so it is necessary to recreate his implicit argument. Fourth, I develop the implications that Gadamer’s layered analysis of play, ritual and event holds for contemporary jurisprudential debates engendered by “new originalism,” which seeks to locate legal meaning as a fixed element of the past that is not amendable to contemporary playful interpretation. I argue that judgment is the heart of legal practice, and judgment is the product of play. Contemporary originalist theorists seek to impose the rigors of empirical science on legal meaning. This approach founders on ontological shoals, because legal practice is a structured play that is realized in discrete events that participate in ritualistic belonging.

Finally, I conclude that the ethic of play is much more demanding than one might assume. My claim that legal practice is playful by nature is a deeply serious assertion that has important ethical implications that extend far beyond a naive view of play as a frivolous indulgence. If we adopt Gadamer’s ontological argument, we must accept that our nature as interpretive beings implies an ethic of understanding, a challenging call of conscience to which we must respond. The ethic of lawyering well is intimately linked with the playful character of understanding. This is not a regrettable admission that legal practice is unconstrained. Quite the contrary, the ludic ethic of legal practice is the ground of the rule of law and therefore a critical foundation for social life.

07/27/2020

Josh Blackman on the Calvary Chapel Decision
Michael Ramsey

At Volokh Conspiracy, Josh Blackman: The Three Dissents in Calvary Chapel Dayton Valley v. Sisolak.  From the introduction (aside: it's a great post and excerpts can't do it full justice):

In Nevada, restaurants, bars, casinos, and gyms are allowed to operate at 50% of their capacity. However, houses of worship are capped at fifty people, regardless of their capacity. On May 22, 2020, the Calvary Chapel Church in Nevada challenged the Governor's emergency directives. The district court denied a TRO on June 11. The church appealed to the Ninth Circuit. That appeal was denied on July 2. On July 8, the church filed an application for injunctive relief with the Supreme Court. The briefing on that case concluded on July 16. Eight days later, the Supreme Court denied the application in Calvary Chapel Dayton Valley v. Sisolak, an unsigned per curiam opinion. Justices Thomas, Alito, Gorsuch and Kavanaugh dissented, and would have granted the injunction. By the process of elimination, we can conclude that Chief Justice Roberts, joined by Justices Ginsburg, Breyer, Sotomayor, and Kagan voted to deny the injunction.

...

This post will walk through the dissents. I will start with Justice Kavanaugh's dissent, which I consider the strongest of the three.

And on Justice Kavanaugh's dissent:

I think this opinion is his strongest effort since he joined the Court. He brings a clarity to this litigation that has been sorely lacking. Part I of his opinion is six pages. I encourage you to read the entire section. Here, I will briefly summarize it.

Kavanaugh identifies four categories of religion cases:

(1) laws that expressly discriminate against religious organizations; (2) laws that expressly favor religious organizations; (3) laws that do not classify on the basis of religion but apply to secular and religious organizations alike; and (4) laws that expressly treat religious organizations equally to some secular organizations but better or worse than other secular organizations.

...

The fourth category is the most significant, and relevant to the COVID litigation. Kavanaugh explains:

Fourth are laws—like Nevada's in this case—that supply no criteria for government benefits or action, but rather divvy up organizations into a favored or exempt category and a disfavored or non-exempt category. Those laws provide benefits only to organizations in the favored or exempt category and not to organizations in the disfavored or non-exempt category.

I have described the COVID orders in very similar terms. The decision to slot some secular activities into the favored category, and religious activities into the disfavored category, reflects an unstated value judgment.

...

Kavanaugh makes this point forcefully. He writes:

Nevada's rules reflect an implicit judgment that for-profit assemblies are important and religious gatherings are less so; that moneymaking is more important than faith during the pandemic.

I wholeheartedly agree. Kavanaugh explains that the starting point is that religious institutions should be given the same favorable status that other organizations are given. This principle should be the default rule. To depart from this default rule, the state needs to provide a sufficient justification.

Agreed.  Although Justice Kavanaugh and Professor Blackman make largely doctrinal arguments, I think this is right from an originalist perspective as well.  Whatever else the free exercise clause means (and whatever one thinks of Employment Division v. Smith), the core original meaning is that government can't disfavor religion in a way that impedes its exercise.

Indeed, I'm not sure (from an originalist perspective, not a doctrinal perspective) why the rule should be that the government can't disfavor religion in a way that impedes its exercise without a "sufficient justification."  Why isn't the rule that the government can't disfavor religion in a way that impedes its exercise, period?

Professor Blackman goes on to criticize Justice Gorsuch's separate dissent as overly simplistic.  But maybe it's not.  Here it is, in its entirety:

This is a simple case. Under the Governor’s edict, a 10-screen “multiplex” may host 500 moviegoers at any time. A casino, too, may cater to hundreds at once, with perhaps six people huddled at each craps table here and a similar number gathered around every roulette wheel there. Large numbers and close quarters are fine in such places. But churches, synagogues, and mosques are banned from admitting more than 50 worshippers—no matter how large the building, how distant the individuals, how many wear face masks, no matter the precautions at all. In Nevada, it seems, it is better to be in entertainment than religion. Maybe that is nothing new. But the First Amendment prohibits such obvious discrimination against the exercise of religion. The world we inhabit today, with a pandemic upon us, poses unusual challenges. But there is no world in which the Constitution permits Nevada to favor Caesars Palace over Calvary Chapel.

07/26/2020

John Grove Reviews Alin Fumurescu's "Compromise and the American Founding"
Michael Ramsey

At Law & Liberty, John G. Grove: Who Are “We The People” Anyway? (reviewing Alin Fumurescu [Houston, Political Science], Compromise and the American Founding: The Quest for the People’s Two Bodies (Cambridge University Press 2019).  From the introduction: 

"The king is dead. Long live the king!" This seemingly contradictory proclamation made upon the death of a monarch encapsulates the theory of the “king’s two bodies.” The medieval concept differentiated between the king as a physical human being, mortal and capable of error, and the king as the body politic, “a Body that cannot be seen or handled, consisting of Policy and Government, and constituted for . . . the Management of the public weal,” as Elizabeth I’s lawyers put it. Upon the death of the old monarch, this public body immediately took residence in the new king, along with his physical presence.

In his recent book, Compromise and the American Founding: The Quest for the People’s Two Bodies, Alin Fumurescu argues that the notion of “two bodies” extends far beyond the age of kings. Assistant Professor of Political Science at the University of Houston, Fumurescu makes a strong case that the American founding—stretching from the Puritan settlements to the Civil War—can be understood as an extended working out of two rival conceptions of “the people” which reflect these same conceptions of the king.

The People’s Two Bodies

The first body corresponds to the physical body of the king: the people conceived of as a collection of equal individuals, united for their own interests and moving, as Locke put it, “whither the greater force carries it,” i.e. by the majority. This body generally reflects liberal social contract theory. Because of its reliance on majority rule, this is generally what we mean when we refer to the majority or the many (contra the elite) as “the people.”

The second conception sees the people as a “corporation, hierarchically structured, ruled by reason for the sake of the common good.” This is the more classical conception of a people as a whole greater than and, in some ways, more important than the parts that make it up. This unified, corporate body relies for guidance not on the majority but on a natural aristocracy, capable of seeing beyond individual self-interest.

Fumurescu’s thesis is that the development of American politics from the Puritans to the Civil War can be understood as a centuries-long grappling with these two competing, but equally essential, conceptions of the people. Ultimately, some sort of balance between these two was necessary to prevent either one from straying into dangerous territory. The corporatist conception of the people always threatens to devolve into “unchecked power” and rule by corrupt leaders; the liberal conception of the people threatens to devolve into a “licentious mob.” We see this most clearly in the Constitution’s ratification debates, in which Federalists worried about mob rule, while Anti-Federalists worried about an unchecked ruling class. Each seized on a different conception of “the people.” Understanding this balance helps us to weave together many partially correct narratives about the founding.

And from the conclusion:

The book is not a light read, and is suited best for scholars of the founding era. It weaves together many various themes from Puritan theology of personhood to virtual representation to the development of partisan government. As the thesis acknowledges, the underlying differences about “the people” are often buried under layers of rhetorical and theoretical expostulations on more “surface-level” topics. As such, it can be difficult to follow through the dense historical jungle that the book traverses.

The thesis is compelling. It hits on two fundamental political truths that are in a degree of tension with one another: One is the observation that “the people” is made up of individuals and is meant to promote the good of those individuals. Nevertheless, a body politic is something more than a joint-stock company, aiming only at individual advancement and governed by the majority. The ideas expressed by the most cogent political thinkers—especially those committed to popular rule but nonetheless concerned about the dangers of majoritarianism—typically recognize these dual truths. It is useful to study the founding era from this perspective.

One is nevertheless left with a sense that perhaps the book bites off more than it can chew. Such a broad and all-encompassing thesis cannot be fully demonstrated in 250 pages. This is especially true of the discussion of the Constitution and the antebellum era, two topics that have been so exhaustively studied as to likely require an entire book dedicated to each.

Fumurescu has convincingly shown that “the people’s two bodies” is a productive approach to many of the issues that defined American development. As we enter a time when honest, non-ideological assessment of America’s past is becoming more difficult to find, this is a valuable contribution.

07/25/2020

Josh Blackman on Justice Gorsuch's Textualism
Michael Ramsey

In The Atlantic, Josh Blackman: Justice Gorsuch’s Legal Philosophy Has a Precedent Problem. From the introduction:

Justice Neil Gorsuch is a proud textualist. According to this approach, what Congress intended, or expected, when it passed a law doesn’t matter. What matters are the words printed on paper. In practice, Justice Gorsuch will strictly follow the text of statutes, no matter what result it yields. Last month, he decided that the 1964 Civil Rights Act has always prohibited LGBTQ discrimination. Everyone had simply missed it for half a century. And at the close of the Court’s term, he determined that an 1833 treaty between the federal government and American Indian tribes was never formally rescinded. Who knew that eastern Oklahoma has been Indian Country all along?

In both cases, Justice Gorsuch insisted he was sticking to the text, the whole text, and nothing but the text. Alas, he wasn’t. His interpretation was shaded by the work of justices who had not been so careful about text. And in both cases, Justice Gorsuch failed to acknowledge that the Court’s precedents were inconsistent with textualism. In doing so, he inadvertently undermined textualism’s justification. One can’t profess to follow the original meaning of a text while in fact following precedents that ignored that meaning. Going forward, he should criticize prior decisions that failed to take text seriously, and either reluctantly follow them, or formally abandon them.

Specifically on McGirt: 

The decision in the second case, McGirt v. Oklahoma, was split 5–4, with Justice Gorsuch joined by the four progressive justices. This case considered whether Congress had formally “disestablished” an American Indian reservation that covers half of Oklahoma. No federal law dictates what precise steps are needed to disestablish a reservation. Thus, textualists have no relevant statute to parse. Instead, the courts have incrementally developed a century of case law about how Congress can eliminate American Indian sovereignty over territory. That framework, alas, is not itself textualist. The Court has never set out some magic words that Congress must utter to wind down tribal authority. Instead, the Court’s approach considers many factors that, when viewed in context, reveal an intent to disestablish the reservation.

This sort of fluid approach is, no doubt, a bitter pill for textualists to swallow. So in McGirt, Justice Gorsuch simply spit it out. Unlike in Bostock, Justice Gorsuch refused to treat the Court’s non-textualist precedents concerning Indian territory as part of the “law’s ordinary meaning.” He did not approach Congress’s entire body of work as the Court has instructed. Over the course of many years, Congress diminished the tribes’ authority, and established a commission to bring the territory under the jurisdiction of the state of Oklahoma. But Justice Gorsuch deemed this evidence too fragmented to establish a unified congressional intent. Rather, he inspected individual congressional actions that concerned the territory in a fragmented, balkanized fashion. Unsurprisingly, Congress did not meet his novel standard for disestablishment. As a result, Justice Gorsuch found that Congress’s 1833 promise to the tribes had not been explicitly repealed, and remained in effect. Congress hadn’t said the magic words. And how could it? Until McGirt, no one knew the precise textual standard that was needed to disestablish a reservation. ...

And from the conclusion:

Justice Gorsuch ... professed to apply a form of unadulterated textualism. But he failed to account for contrary precedent. In Bostock, he quietly baked into his analysis decisions from the 1980s and ’90s that were hardly textualist. And in McGirt, he demanded a level of textual precision from Congress that had never been demanded before.

Repeating, over and over again, that Congress can amend the statute if it disagrees with the Court’s decision is not enough. Of course it can. But this argument goes only so far. Congress has been operating under certain presumptions for decades; it thought the scope of Title VII and the boundaries of Oklahoma had been settled long ago. But Justice Gorsuch maintains that everyone was wrong about Title VII for five decades, and that everyone was wrong about eastern Oklahoma for a century.

...

... In its present form, Justice Gorsuch’s textualism is far too fragmented to form a coherent jurisprudence. In the future, he must grapple with the interplay between stare decisis and textualism. ... [His current approach] is misleading. It preaches textualism, but practices precedentialism. This approach, in the long run, will serve only to undermine textualism. If Justice Gorsuch wants to move the law away from nebulous, flimsy reasoning toward more textualist, neutral principles, he must account for both text and precedent.   

07/24/2020

Michael Dorf on Textualism in McGirt and Bostock
Michael Ramsey

At Dorf on Law, Michael Dorf: Will Liberal Justices Pay A Price For Signing Onto Justice Gorsuch's Textualist Opinions?  On McGirt

The core of the McGirt opinion goes like this: (1) The treaties created a reservation for the Creek; (2) a statute could disestablish a reservation; (3) however, actions by states and the courts can't disestablish a reservation; and (4) nothing Congress said in any statute or treaty adopted after the treaties that established the reservation disestablished it, so the reservation still exists. The crucial step is the last one, because Justice Gorsuch rejects what Chief Justice Roberts in dissent (quoting a 2016 case) calls a "well settled" approach of looking at the context and historical understandings of Congress and other actors to infer a congressional purpose to disestablish the reservation. 
 
Insofar as McGirt applies a clear statement rule specifically applicable to the disestablishment of reservations or somewhat more broadly to constructions of treaties with Native tribes, his approach is sensible and unobjectionable. And there are indeed parts of Justice Gorsuch's opinion that can be understood in this way. But there are also a great many parts of his opinion that appear to be applying strict textualism as the right approach to statutory interpretation for all seasons. For example, Justice Gorsuch writes that "the only 'step' proper for a court of law" in construing a statute is "to ascertain and follow the original meaning." For that proposition he cites a case having nothing to do with treaties or Native American rights. The opinion reads like a stark rejection of what Prof William Eskridge has called dynamic statutory interpretation.
 
Sounds good to me.  But then, Professor Dorf asks, did Justice Breyer et al. join the opinion (and the similarly textualist opinion in Bostock)?
 
Why, then, do the Court's Democratic appointees--including Justice Breyer, who has been a vocal opponent of anything like strict textualism--go along with Justice Gorsuch's opinion? It is possible, albeit just barely, that they read Justice Gorsuch's language as anodyne. For example, right after his paean to original meaning, Justice Gorsuch says that the Court will "sometimes consult contemporaneous usages, customs, and practices to the extent they shed light on the meaning of" ambiguous language. Purposovists like Justice Breyer can agree with that while thinking that more language is ambiguous than the likes of a textualist would say. But I think this explanation requires a fairly contrived understanding of the opinion, which, on its face, seems to rule out methods that Justice Breyer and the other Justices in the majority would routinely find perfectly acceptable.
 
I am thus left to conclude that the Democratic appointees joined Justice Gorsuch's highly textualist opinion in McGirt for the same reason they joined his likewise highly textualist opinion in Bostock: they agreed with the result.
 
Yet that raises the question whether there will be a future price to pay. In some future case in which textualism leads to a conservative result, will the liberal Justices feel compelled to endorse such a result? The short answer is no. The very fact that they were willing to join the textualist majority opinions in Bostock and McGirt even though they have also written and joined purposivist (or occasionally intentionalist) opinions shows that they regard methodology as secondary to results. You can't hoist result-oriented justices by their own methodological petards because they don't have methodological petards.
 
That's really an extraordinary statement.  Of course, it's what originalist scholars and conservative critics tend to say about nonoriginalist Justices.  But Professor Dorf is a liberal nonoriginalist.  Generally such scholars are reluctant to admit that nonoriginalism is just about results.  (Or perhaps he just means to say that the Court's nonoriginalists are bad nonoriginalists?).

07/23/2020

Ronald Levin & Mila Sohoni on John Harrison on APA Remedies
Michael Ramsey

 At the Yale Journal on Regulation's Notice and Comment blog, Ronald M. Levin (Wash. U.) & Mila Sohoni (San Diego): Universal Remedies, Section 706, and the APA.  From the introduction:

The debate over the propriety of the nationwide or “universal” injunction continues to unfold. Just this month, in a dissenting opinion in Little Sisters of the Poor v. Pennsylvania, Justices Ginsburg and Sotomayor took a stand in favor of the permissibility of such injunctions, balancing off comments to the contrary in earlier opinions by Justices Gorsuch and Thomas.

The debate among commentators also remains in flux. In particular, in a recent JREG post and accompanying bulletin, Professor John Harrison has set forth a fresh argument about the judicial review provisions of the Administrative Procedure Act (APA) and their relationship to the universal injunction. Hailed by one observer as “explosive,” Harrison’s work swiftly received a prominent citation at the Supreme Court in the Solicitor General’s reply brief in Trump v. Pennsylvania, the companion case to Little Sisters. Accordingly, we felt it worthwhile to write this response to his contentions. ....

We have each written separately about the APA and universal injunctions, including in an amicus brief and a recently posted draft article by one of us (Sohoni, The Power to Vacate a Rule). (That article contains portions of the analysis below.) But Harrison adds a new twist to the debate. His chief claim is that “section 706 . . . does not address remedies at all. … The APA addresses remedies not in section 706, but in section 703.” The implications of this broad assertion extend well beyond the context of universal injunctions; they raise questions about the fundamental structure of the APA. ...

Like the famous Robert Rauschenberg artwork “Erased de Kooning Drawing,” the impact of Harrison’s argument flows from what it erases. In the 70-plus years since the APA was enacted, administrative lawyers have never construed Section 703 as addressing remedies. Even if the tabula were actually rasa, moreover, we would still urge against Harrison’s reading of the APA. That law’s text, structure, legislative history, and purposes all support the view correctly held by courts and commentators: the APA deals with remedies—including universal remedies—in Sections 705 and 706, not in Section 703. ...