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.