The Justice’s textualism hands half of Oklahoma to Indian tribes.
In case you missed it, the Supreme Court on Thursday established an Indian reservation on three million acres of land in eastern Oklahoma. Wild. The 5-4 decision in McGirt v. Oklahoma could significantly affect Sooners, and it is also worth noting because it shows how Justice Neil Gorsuch’s textualist jurisprudence is careening in some odd directions.
In 1997, Jimcy McGirt was convicted by the state of Oklahoma for molesting, raping and sodomizing his wife’s four-year-old granddaughter. He later challenged his state conviction under the 1885 Major Crimes Act, which holds that “[a]ny Indian who commits” certain crimes within “the Indian country” must be tried in federal courts.
Mr. McGirt claimed he was a member of the Seminole Nation and committed the crime on land Congress reserved as a “permanent home to the whole Creek Nation” in an 1833 treaty. Since Congress never enacted a law explicitly reneging on the treaty, he said the land belongs to the Creeks. Justice Gorsuch and the four liberals agreed.
“Mustering the broad social consensus required to pass new legislation is a deliberately hard business under our Constitution,” Justice Gorsuch writes for the majority. “Faced with this daunting task, Congress sometimes might wish an inconvenient reservation would simply disappear . . . But wishes don’t make for laws, and saving the political branches the embarrassment of disestablishing a reservation is not one of our constitutionally assigned prerogatives.”
But as Chief Justice John Roberts explains in a dissent joined by the other three conservatives, Congress disestablished the Creek reservation through a series of laws. For the past century, the Court has determined whether an Indian reservation persists by examining Congress’s acts and “all the [surrounding] circumstances.”
Context is important. Lo, the Creeks and other tribes in the southeastern U.S. held 8,000 slaves and allied with the Confederacy. After the Civil War, the U.S. signed new treaties with the tribes declaring they had “unsettled the [existing] treaty relations,” thereby rendering themselves “liable to forfeit” all “benefits and advantages enjoyed by them” including lands.
Congress in subsequent decades leading up to Oklahoma’s statehood dismantled the tribal governments and courts, stripped tribes of taxing authorities, extinguished the Creek Nation’s title to the land and made members U.S. citizens. “The congressional Acts detailed above do not evince any unease about extinguishing the Creek domain, or any shortage of ‘will,’” the Chief writes.
In the century before the McGirt case, the Creek Nation never contended in court that a reservation existed on the sprawling land. Yet now they and other tribes by virtue of the Court’s reasoning may hold title to the entire eastern half of Oklahoma including the city of Tulsa—home to 1.8 million people.
Past convictions for crimes committed on the land may now be thrown out, the Chief points out, and the decision creates “significant uncertainty for the State’s continuing authority over any area that touches Indian affairs, ranging from zoning and taxation to family and environmental law.”
Justice Gorsuch sweeps aside these precedents and reliance interests because Congress has never expressly written a single law that disestablished the reservation. This sounds a lot like his misapplication of textualism in his Bostock opinion redefining biological “sex” in the 1964 Civil Rights Act to encompass gender identity and sexual orientation. Textualism looks like a tool to get the judgment he wants.
The Chief Justice doesn’t put it this way, but it’s clear he thinks that Justice Gorsuch in McGirt has turned textualism into an idiosyncratic vanity project. The Court’s liberals are making the most of it, and good luck with the consequences, Oklahoma.
To Make Police Accountable, End Qualified Immunity
In their preference for a policy that protects police, conservatives abandon their commitment to textualism and embrace pro-government judicial activism.
If you haven’t watched the video of (former) Minneapolis police officer Derek Chauvin killing George Floyd by jamming his knee into Floyd’s cervical spine for nearly nine minutes until he loses consciousness, you really should. And if you can’t understand why large swaths of urban America have been in flames these last few nights, do two more things: (1) instead of George Floyd, who you probably don’t know, imagine the person pinned under Chauvin’s knee—prone, handcuffed, unresisting, and begging for mercy—was someone you love; and (2) listen to conservative pundits dissecting Chauvin’s merciless assault on Floyd with all the sangfroid of a referee performing an instant replay review to see whether the runner’s knee was down when the ball came loose. No wonder it seems as though the country is coming apart at the seams.
In determining the relationship between government and governed, one of the most important decisions a society can make is how accountable those who wield official power must be to those against whom that power is wielded. Congress made a clear choice in that regard when it passed the Enforcement Act of 1871, which we now call “Section 1983” after its location in the U.S. Code. Simply put, Section 1983 creates a standard of strict liability by providing that state actors “shall be liable to the party injured” for “the deprivation of any rights.” Thus, if a police officer walks up to your house and peeks inside one of your windows without a warrant—a clear violation of your Fourth Amendment right against unreasonable searches—he is liable to you for the violation of that right.
But many conservatives do an odd thing: In their preference for a more forgiving policy that gives police and other government officials substantial leeway in the exercise of discretion, they abandon their stated commitment to textualism and embrace an “interpretation” of Section 1983 that is utterly divorced from its text. The vehicle for this conservative brand of what we might call “living statutory interpretivism” is the Supreme Court’s qualified immunity doctrine, which judicially amends Section 1983 to provide that the standard for liability will no longer be the deprivation of “any rights”—as Congress expressly provided—but rather the deprivation of any “clearly established” rights.
As documented in considerable detail on Cato’s Unlawful Shield website, those two words—“clearly established”—do an extraordinary amount of work in keeping meritorious cases out of court and ensuring that plaintiffs whose rights have been violated by police or other state actors will receive no recovery unless they can find a pre-existing case in the jurisdiction with nearly identical facts. But that is plainly not the statute that Congress wrote, nor is it the standard of accountability that Congress chose. Moreover, as Professor Will Baude demonstrates in his masterful article, “Is Qualified Immunity Unlawful?,” there is no credible textual or historical basis for the qualified immunity doctrine; it is a blatant act of pro-government judicial policymaking—activism, if you will—and nothing more.
So now back to the killing of George Floyd. Watching that horrific video, one cannot help but notice the look of utter complacency on the face of Derek Chauvin as he drives his knee into Floyd’s neck. There is no life-or-death struggle—indeed, no struggle at all; nor is there any evident anger or passion—there is simply the banality of a man wearing a badge, surrounded and supported by other men with badges, methodically squeezing the life out of another human being.
It is well known that prosecutors rarely bring criminal charges against police officers, and indeed it seems unlikely Chauvin would have been charged had his assault on George Floyd not been captured on a viral video. That means the only avenue of accountability for most victims of police misconduct is a civil rights lawsuit that they themselves can initiate without the largesse of some prosecutor or citizen review board. But the Supreme Court has largely gutted that remedy with a judicially confected gloss that transforms the legislatively chosen policy of strict liability into one of near-zero accountability.
Cities are burning, and many people are venting their rage—yet again—about how cavalier police have become with the use of force, including lethal force, against the very citizens they are sworn to protect. Those people are right to be angry, and they’d probably be even angrier if they understood that it was never supposed to be like this—that Congress specifically chose a system of robust government accountability that was repudiated and perverted by the Supreme Court.
This Monday we will find out whether the Court will take the unprecedented opportunity it now has to revisit qualified immunity. It will be particularly interesting to see which self-styled conservatives—on and off the Court—place their stated commitment to textualism and judicial deference above whatever personal preference they may have for continuing our half-century experiment in near-zero accountability for law enforcement.
Who Is Brett Kavanaugh?
Contrary to what supporters say, he’s no originalist.
But Judge Kavanaugh hasn’t earned his originalist badge. It’s being fixed to him to mask the fact that as an appeals court judge, he relentlessly pressed forward a Republican agenda favoring business and religious interests.
.. Judge Kavanaugh leaned a bit toward an originalist approach in two opinions, one in 2008, the other in 2011. But when he was asked in 2016 whether he considered himself an originalist, he didn’t answer, and in a 2017 lecture, he expressed caution. “History and tradition, liberty, and judicial restraint and deference to the legislature,” he explained, “compete for primacy of place in different areas of the Supreme Court’s jurisprudence.”
To a pure originalist, this is an incoherent mixing of methodologies. Any ruling that departs from the original meaning should be thrown out. Judge Kavanaugh has called for no such thing.
.. Instead, he has proudly said that he’s a textualist, which means that he gives primacy to the ordinary meanings of the words of a statute, or the Constitution itself. Textualists steer away from other sources of meaning, like legislative history. Conservatives have often touted textualism for its neutral deference to the legislature. Three of the court’s conservative members — Chief Justice John Roberts and Justices Samuel Alito and Neal Gorsuch — lay claim to textualism as a guiding principle.
But textualism doesn’t serve as an overarching theory for conservative jurisprudence. Textualist interpretation can produce liberal as well as conservative interpretations of statutes. And because ambiguous phrasing in laws leaves judges with choices to make, it doesn’t put much of a restraint on judges. As Judge Kavanaugh has said, quoting the liberal-moderate Justice Elena Kagan, “We are all textualists now.” This means that textualism offers neither a clear dividing line from liberals nor the historical gravitas of originalism.
.. This is clear from the conservatives’ expansive interpretation of the First Amendment’s guarantee of free speech, an approach that has no historical support from the time the First Amendment was written. Despite this, in a series of decisions, from Citizens United in 2010, which opened a faucet of campaign donations and spending, to Janus v. AFSCME in June, which diminished the clout of unions by stopping them from collecting dues from all the workers they represent, conservatives have used the First Amendment to strike down laws that regulate corporations, help unions and limit the influence of money on politics.
.. Tellingly, the court has accepted far more cases involving challenges to regulations of conservative speech than previous courts, with a win rate of 69 percent, compared with 21 percent for cases involving liberal speech. Judge Kavanaugh, too, has embraced this business-friendly interpretation of the First Amendment.
.. With five reliable members, the court’s conservative wing will be in a position to accomplish much, and for the most part it will be easier to achieve its goals without originalism.
.. Expect a reappearance, however, when it comes time to reconsider the constitutional right to abortion access established in Roe v. Wade. With that important exception, originalism has largely served its purpose and can be cast away
.. Judge Kavanaugh’s supporters call him an originalist rather than the pro-business Republican he is because of the theory’s claim that it separates law from politics. As the gap between originalism and the greater goals of conservative jurisprudence widens, however, the claim that the Supreme Court stands above the political fray, already damaged, will become harder to sustain.
Scalias All the Way Down
The president is stocking the courts with a class of brilliant young textualists bearing little relation to even their Reagan or Bush predecessors. Mr. Trump’s nastygrams to Bob Corker will be a distant memory next week. Notre Dame law professor Amy Coney Barrett’s influence on the Seventh U.S. Circuit Court of Appeals could still be going strong 40 years from now.
.. Mr. Trump has now nominated nearly 60 judges, filling more vacancies than Barack Obama did in his entire first year. There are another 160 court openings, allowing Mr. Trump to flip or further consolidate conservative majorities on the circuit courts that have the final say on 99% of federal legal disputes.
.. Harry Reid’s 2013 decision to blow up the filibuster for judicial nominees has freed the Trump White House from having to worry about a Democratic veto during confirmation. Mr. McGahn’s team (loaded with former Clarence Thomas clerks) has carte blanche to work with outside groups like the Federalist Society to tap the most conservative judges.
.. The result has been a band of young rock stars and Scalia-style textualists like Ms. Barrett, Texas Supreme Court Justice Don Willett and Minnesota Supreme Court Associate Justice David Stras.
.. Because Mr. Trump’s picks have largely spent their careers focused on administrative law and constitutional questions, few have gotten bogged down by controversial cultural rulings. They do have paper trails, but mostly on serious and technical issues. This helps reassure Republicans even as it deprives Democrats of the fodder they’d need to stage dramatic opposition.
.. Conservatives praised Mr. McConnell last year for refusing to consider Judge Merrick Garland, whom Mr. Obama had nominated to the Supreme Court. Less well known is the sheer number of federal judgeships Mr. McConnell sat on as the Obama administration wound down. Mr. Trump took office with 107 lower-court vacancies
.. The Trump judicial reset was never guaranteed. Mr. McConnell just happens to have a steely passion for remaking the judiciary. Previous majority leaders Trent Lott (best friends with trial lawyers) and Bill Frist (nice, nice) would never have gotten Justice Gorsuch confirmed. Those guys were the “establishment.”
The Trump judicial reset was never guaranteed. Mr. McConnell just happens to have a steely passion for remaking the judiciary. Previous majority leaders Trent Lott (best friends with trial lawyers) and Bill Frist (nice, nice) would never have gotten Justice Gorsuch confirmed. Those guys were the “establishment.”
.. Mr. Trump will keep baiting the media with shiny objects. In the background, government is being redone.