Textualism and Indian Country

Neil Gorsuch was put forward for the Supreme Court by various conservative bodies, such as the Federalist Society, because he believes strongly in a doctrine called "textualism." This doctrine was well defined by Justice Oliver Wendell Holmes, who wrote,

We ask, not what this man meant, but what those words would mean in the mouth of a normal speaker of English, using them in the circumstances in which they were used ... We do not inquire what the legislature meant; we ask only what the statutes mean.

Or as this blogger put it, "Only the written word is the law."

American conservatives are attracted to this doctrine because they think US courts have been interpreting laws in ways that go far beyond what they say. By prying into what laws "mean", they think, judges have effectively been writing their own laws. The main decisions that made this a conservative mainspring were Roe v. Wade – after all, the word "abortion" does not appear anywhere in the Constitution, so under a textualist interpretation there can be no right to abortion – and those that turned a ban on segregation into mandated school busing.

But Neil Gorsuch has lately been giving some of his backers a lesson in what it means to take the text seriously. First there was his ruling in Bostock v. Clayton County, which found that a law forbidding discrimination on the basis of "sex" applies to gay and trans people. One could argue against this on many grounds; for example, if you are an originalist who likes to rule on the basis of what the law meant when it was written, you might argue that nobody in 1964 intended the law to protect gay people. But Gorsuch just looked at the text and said, to me, "sex" means what adults do in bed together, so homosexuality is obviously protected.

And now there is his ruling in McGirt v. Oklahoma, delivered Thursday, which holds that wide swathes of Oklahoma are still "Indian Country":

On the far end of the Trail of Tears was a promise. Forced to leave their ancestral lands in Georgia and Alabama, the Creek Nation received assurances that their new lands in the West would be secure forever. In exchange for ceding “all their land, East of the Mississippi river,” the U. S. government agreed by treaty that “[t]he Creek country west of the Mississippi shall be solemnly guarantied to the Creek Indians.” Treaty With the Creeks, Arts. I, XIV, Mar. 24, 1832, 7 Stat. 366, 368 (1832 Treaty). Both parties settled on boundary lines for a new and “permanent home to the whole Creek nation,” located in what is now Oklahoma. Treaty With the Creeks, preamble, Feb. 14, 1833, 7 Stat. 418 (1833 Treaty). The government further promised that “no State or Territory shall ever have a right to pass laws for the government of such Indians, but they shall be allowed to govern themselves.” 1832 Treaty, Art. XIV, 7 Stat. 368. 

Today we are asked whether the land these treaties promised remains an Indian reservation for purposes of federal criminal law. Because Congress has not said otherwise, we hold the government to its word.

Here is the hidden danger in textualism for conservatives. Legislators have a very long tradition, probably stretching back to Hammurabi, of writing laws one way while knowing perfectly well they would be interpreted in another way. Custom and long usage, they knew, would keep the full language of the statute from being enforced. 

But textualism is death to custom and tradition, unless those things are clearly written into the law. 

Liberals shouldn't necessarily gloat over this, because Gorsuch has shown in these rulings that 1) he really means what he says about reading only the text of the law, and 2) he is perfectly willing to throw big monkey wrenches into things like how justice is administered in Oklahoma if he thinks the law calls for it. He will vote to overturn Roe v. Wade every chance he gets.