Wednesday, July 22, 2020

Will Liberal Justices Pay A Price For Signing Onto Justice Gorsuch's Textualist Opinions?

by Michael C. Dorf

Last week, Prof Segall pushed back against an emerging narrative among many SCOTUS watchers. According to the rapidly-becoming conventional wisdom, in the most recent Term, Chief Justice Roberts and Justice Gorsuch demonstrated that they are principled jurists who follow the law and their interpretive methodology where it leads them. The main pieces of evidence for this narrative are the SCOTUS decisions this term in the LGBT Title VII case (written by Gorsuch and joined by Roberts and the liberals), the Louisiana abortion case (written by Roberts and joined by the liberals), the DACA case (same), and the Trump financial records cases (written by Roberts and including Justices Gorsuch, Kavanaugh, and in one respect all the Justices). We can also point to the Oklahoma case involving the Creek Nation (written by Gorsuch and joined by the liberals), about which more below.

That's a pretty impressive list, right? So what is Prof Segall's objection? He makes three powerful points. First, he notes that the Court remains quite conservative, pointing in particular to the very broad conception of religious freedom that animated a couple of its end-of-Term rulings. Second, he offers ideological and pragmatic explanations for the votes of Chief Justice Roberts (who is the focus of his commentary). And third, he offers the legal realist observation that, at least at the level of the Supreme Court, the conventional legal materials (text, history, precedent) are so under-determinate that one pretty much must look to extra-legal causes for any jurist's decision. In addition to all of that, Prof Segall refers to a fourth point, citing Prof Leah Litman's excellent analysis in The Atlantic: the Court's liberal-leaning rulings this past Term are not so liberal and could well prove to be fleeting.

Although I am a bit less of a Supreme Court exceptionalist than Prof Segall, that difference is small in context. I broadly agree with his critique. Here I want to use that critique to respond to a worry that might otherwise trouble liberal Court watchers. The worry is encapsulated in the title of today's essay: Will liberal Justices pay a price for signing onto Justice Gorsuch's textualist opinions?

Last month, I praised Justice Gorsuch's opinion in Bostock v. Clayton County--the Title VII case--even as I objected to the extreme textualism of the opinion's style. I explained that the opinion would have been stronger if it had explained why discrimination based on gender identity or sexual orientation does not merely count as sex discrimination as a formal matter but that both gender identity discrimination and sexual orientation discrimination are rooted in pernicious sex-role stereotyping, which is the central evil that the prohibition on sex discrimination combats. Moreover, I argued that while Justice Gorsuch justified the result in textualist terms, there is very good reason to think that other factors were in play in leading him and the Chief Justice to decide as they did. In that respect, my analysis was very similar to what Prof Segall wrote last week.

We can say much the same thing about the case involving the Creek, McGirt v. Oklahoma. There Justice Gorsuch, writing for a 5-4 majority of the Court, found that that two treaties in the 1830s created a  reservation covering much of the state, and that while an 1866 treaty reduced its size and subsequent Acts of Congress undercut the tribe’s rights, Congress has never disestablished the reservation. In my latest Verdict column, I explain that even though Justice Gorsuch's opinion acknowledges the power of Congress to override treaty obligations to the Creek and other tribes, there is good reason to think that going forward tribal treaty rights will be "sticky." Here I want to focus on the interpretive style of Justice Gorsuch's McGirt opinion.

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.

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.

More fundamentally, joining a textualist opinion does not commit anyone to anything in the future because textualism--at least in contested cases at the Supreme Court--is grossly under-determinate. The dissenting justices in Bostock and McGirt also claimed to be textualists, yet reached different conclusions. Textualism in contested Supreme Court cases is almost entirely a rhetorical style of justification, not a mechanism for decision.

Accordingly, it was perhaps less than fully honest of the Democratic appointees to join Justice Gorsuch's Bostock and McGirt opinions without even writing short concurrences to explain why the results were justifiable on purposivist grounds as well, but even if so, they will not pay a price for their methodological inconsistency in future cases--just as Chief Justice Roberts, Justice Gorsuch, and others will be able to make textualist arguments for whatever conservative (or liberal) results they favor in future cases.


Joe said...

I have seen some concern (including from people in academia) the the liberals (or liberal leaning moderates) joining such opinions w/o comment can come back to bite them some. Basically, without challenge, the position is given added cachet and this has long term effects though how to quantify them might be hard to spell out with specificity.

I can see that happening to some extent though as discussed here the terms tend to be flexible enough so that the justices have a lot of rope. Justice Kagan's faithless electors opinion arguably has bits that are anti-originalist (whatever the understanding was, the text is thus) and all but Thomas (though Gorsuch joined Thomas in part) signed on to it. But, it won't matter too much really.

"Too much" isn't "none" but than a concurring statement doesn't have much effect either. Five or more justices still signed on. It becomes normalized and later on liberals too quote language in other cases to get conservative support. Again, this is not w/o problems. I personally think that original understanding is cited too much (I find it almost amusing at times -- it is like a person like Prof. Segall is okay with originalism, but the problem is it is not done right -- see, e.g., his quote of Alexander Hamilton's strict test for judicial review*). But, that's life.

Anyway, like when liberals w/o comment joined the writer's old boss in gay rights cases even if they might have wrote things a bit differently, if the justices think this is the best way to do things, figure they would know more than I.


* Federalist 78 has some quite quotable material, but at the end of the day, it's still a op-ed and isn't even a rap. Seriously, criticism of originalism is sound and current constitutional law has to rest on the complete package, not quotables from 1788 or so.

Asher Steinberg said...

I guess I was a tad surprised--surprised is probably the wrong word, but at least not absolutely unsurprised--that Breyer thought the result in Bostock was the right result, given his very reasonable, from a purposivist perspective, skepticism at argument. Gerald Lynch, who openly said in his opinion that he would have liked to vote for the plaintiff in Zarda, wrote a purposivist opinion on why Title VII doesn't cover sexual-orientation discrimination. I understand there are purposivist arguments cutting the other way, but the strength of the purposivist case against this result seems at least stronger than the textual case.

I was also a tad surprised that Breyer thought the result in McGirt was a desirable result. Breyer tends not to be a fan of big criminal-procedural shakeups absent some compelling normative reason for them, and the reason for this one seems to just be a lack of textual i-dotting and t-crossing in certain century-old statutes. Compounding that with the serious purposivist case going the other way, it strikes me as a disappointingly unprincipled vote for a Justice whom I generally greatly respect.

Joe said...
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Joe said...

It would not surprise that I think on balance that the Bostock opinion was rightly decided though textualism alone probably would not get one there. The opinion had a few noises about that sort of thing but yeah it's Gorsuch. But, Breyer is the go along type of justice, take one for the team etc., so him avoiding spelling out his somewhat different view (given his druthers) to me is not too surprising.

I'm more unsure about McGirt than some of my fellow travelers. A lot of the coverage was "yay Native Americans" and "about time NAs are not screwed" etc. But, I still find the result as a sort of "Easter egg" (for those who catch the reference) that is especially dubious to me since we are not just talking about some time in the early 1800s or something where a treaty was fraudulently crafted. We are talking early 1900s and Congress not disestablishing though apparently most people (including many Native Americans from what I can tell) thought so then and now.

But, hey, I might be wrong, especially given the logic of current jurisprudence. I would like to see sympathetic people of Native American rights and interests providing contrasting arguments there. Also, Breyer himself might feel more comfortable going along with Gorsuch, seen having special expertise on the subject, in a closer case than in the Bostock case. I think on Bostock he just thought on balance it was right.