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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?).