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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term, he determined that an 1833 treaty between the federal government and American Indian tribes was never formally rescinded.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.