Supreme Court Justice Neil Gorsuch’s views on tribal rights show how focusing on the actual text actually works

Being conservative in legal matters means saying words mean things. When the US Constitution, or a federal law, or a government regulation, says “X,” we can’t cut off the bottom right-hand side and say it’s actually “Y.” It means judges don’t make the laws — that’s the job of the elected officials who are elected by and accountable to the voters — but rather work to understand what the law meant when it was written.

In normal business, that’s well understood. If a company offers to sell a product to a customer for a certain amount of money and both the company and the customer sign a purchase contract, the company delivery driver doesn’t get away with saying at the time of delivery, “I have your product out in my van, but you don’t get it until you pay me an extra $100 delivery fee. Oh, that fee isn’t in the contract, you say? Well, I interpret the words differently than you do, and I have all the power because it’s in my van, so pay up or you don’t get your product.”

No court would tolerate such behavior. It would be called — at best — breach of contract. It might be considered extortion if the product is something critical to the customer who needs it right away and may be under pressure to pay the “delivery fee” that’s not in the contract.

Unfortunately, much of the liberal approach to American constitutional law since the late 1930s has looked increasingly like that extortionate delivery driver. “We’ve got the power, we will do what we want because it’s good for you, and you can’t fight back.”

What several generations of American conservatives have forgotten is that for most of American history, the US Supreme Court was a hotbed of conservative legal theory. The US House, as it was intended to be, was a populist institution directly accountable to the voters. The US Senate, whose members were elected not by the people but by the state legislatures, and which by design was skewed toward overrepresentation of smaller states that tended to be more rural and less populous, acted as a “brake” on populism. The Supreme Court, as recently as the era of President Franklin Delano Roosevelt, was routinely striking down legislation passed by the Congress and promoted by the President that, at least arguably, represented gross federal overreach that gave the federal government powers to fight the Depression that were never intended by the Founding Fathers.

The Supreme Court is not an elected body and that was by design. While senators serve for six years and presidents serve for four years to partially insulate them from popular pressure that quite properly can be and should be applied to members of the US House of Representatives, federal judges, once nominated by the president and confirmed by the Senate, have essentially lifetime appointments apart from the impeachment process that requires a supermajority in the US Senate to convict a judge of misconduct. The intent was to create a body of men who would interpret the law and the Constitution without being swayed by popular pressure, and until populist politics infected our Senate and most of our law schools, the system worked fairly well.

Conservatives in the 1930s said, correctly so, that if people wanted to give the federal government the power FDR wanted, the Constitution needed to be amended, as it had been amended a generation earlier to allow the federal income tax which had also repeatedly been ruled unconstitutional by the US Supreme Court before the Constitution was amended to allow direct federal taxation.

That changed, not because the Congress proposed and the states ratified an amendment, but rather because political pressure, first due to the economic crisis of the Great Depression and then the wartime emergencies of fighting German Nazis and Imperial Japanese, led to the US Senate approving Supreme Court nominees who changed the longstanding conservative orientation of the Supreme Court, and did so in such a complete manner than few conservatives alive today have any awareness that liberals once blasted the black-robed justices as an impediment to their views of progress.

What modern liberals don’t always understand is that for conservatives — at least for most conservatives, though admittedly not all — the text of the Constitution and the text of the laws really **DO** matter.

With the new 6–3 conservative majority of the US Supreme Court, that’s leading to interesting debates.

Look, for example, at Justice Neil Gorsuch, who has emerged as a key defender of tribal rights in federal law.

Now it must immediately be said that agreeing with Gorsuch’s emphasis on reading the text of Native American treaties and saying, “They mean what they say,” is not the same as agreeing with his conclusions. Many of the treaties involved are well over a century old — a recent US Supreme Court decision involved a treaty signed in 1868 — and there is often a very long history of judges interpreting (and arguably, misinterpreting) the texts. Often there have been many subsequent federal laws that have clarified or confused the situation. Because it is important to a stable government that people know what the laws say and what is expected of them by their government, the principle of “stare decisis” (let it stand) means that bad decisions by prior judges, unless they are truly horrid and cause great damage that can only be undone by their overturning, need to be left in place in most cases.

But even publications like The New Yorker and The Nation Magazine (both of which are liberal, and both of which I read) have noted Gorsuch’s decisions on Native American tribal law. Their writers respond with surprise when Gorsuch, who is by normal modern definitions a conservative, reads the texts of treaties that favor a minority group that has a legitimate Constitutional status as a protected minority group with its own rights under law, and says, “The United States government agreed to do X. It hasn’t been doing X. It hasn’t been doing X for a long time. And it needs to start doing what it promised to do a century and a half ago.”

Here’s the article from The New Yorker on Justice Gorsuch’s stances on Native American law: https://www.newyorker.com/news/daily-comment/does-it-matter-that-neil-gorsuch-is-committed-to-native-american-rights

And here’s Elie Mystal’s interesting article from the Nation: https://www.thenation.com/article/society/supreme-court-upholds-indian-child-welfare-act/

Also from The New York Times: https://www.nytimes.com/2023/06/15/us/politics/neil-gorsuch-supreme-court-opinions.html

Exactly what water rights the Navajo Nation should or should not have as the Colorado River dries up is a complex question. What’s not a complex question is that the Navajo fought a war against the United States, and following negotiations between a US Army general — General Sherman, the same general who conducted a scorched-earth campaign to defeat the Confederacy, but was forced to the bargaining table to work out a deal with the Navajo — the US government settled the war with a formal treaty that gave the Navajo rights on which they insisted as a condition of ending the war.

Gorsuch understands that words mean what words mean.

Conservatives, while they may not always agree with Gorsuch’s conclusions, will find more and more situations like the Navajo water dispute on which we look not only at the text of the United States Constitution, which is a widely available document, but also the texts of many federal and state laws which are much less well known.

For far too long — nearly ninety years — judges have been resolving difficult court cases, not necessarily based on what the texts of the laws said, but on what the judges think “justice” requires.

In some cases, and I would include a number of civil rights decisions in that category, the American courts got rid of horrible and even wicked laws. The actions of our courts in the 1950s and 1960s sped up a slow political process, and while ends do not justify the means, it’s hard to dispute that some judges, seeing Southern bigots before them in seersucker suits with properly passed laws on their side, said in their minds and hearts (if not necessarily with their pens), “These bigots are bad, the law is wrong, and I need to find a way to rule this state legislative decision a violation of the US Constitution.”

In fact, a conservative case can even be made that much as the Native American tribes have a special status as formerly independent nations that waged war against the United States, or peacefully made treaties as sovereign entities, the Reconstruction Amendments following the Civil War not only can be used, but in fact were intended to be used, as tools to stop abuse of former slaves by bigoted state and local governments of the former Confederacy. (That’s in part a response to Elie Mystal of The Nation Magazine, who believes the Constitution is a white man’s document and was never intended to defend black men’s rights. With respect, some of my ancestors fought a war to do just that, and the Reconstruction Amendments to the Constitution deserve just as much weight in conservative jurisprudence as the Navajo treaties signed about the same time, and also after military action — with the important difference that the Confederates lost and were destroyed, while the Navajo survived and signed a treaty.)

A bit more needs to be said in response to Elie Mystal’s view, which can fairly be summarized as saying that focusing on original intent of the US Constitution will end badly for Black people because the Constitution was written by White slaveowners, White northerners involved in slave trafficking, and those who were comfortable with defending the slave culture of the South. At least arguably he has a point about the Founding Fathers, but the Reconstruction Amendments changed that, and changed it radically.

The Reconstruction Amendments, much like the Navajo Nation treaties, need to be read in a context. That context was armed conflict.

General William Tecumseh Sherman was not known for “playing nice.” Sherman’s “March to the Sea” was done to destroy Confederate willingness to fight, but he negotiated instead with the Navajo. Maybe, just maybe, the US government ought to pay some serious attention to the text of the treaty General Sherman negotiated?

American slavery ended not because slaveowners were nice and manumitted their slaves. (Yes, some did, and that was the right thing to do, but nowhere near enough did that.) American slavery ended because millions of men fought and died to end it.

The Reconstruction Amendments say that voting rights “shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude.” I’m willing to accept an argument, given the tenor and anger of the “Radical Republicans” (that was a formal term, not an adjective) who ran the Congress, that the intent of the Fifteenth Amendment, in combination with the Fourteenth, should be interpreted broadly to mean more than voting rights. Elie Mystal of The Nation Magazine is wrong when he claims the Constitution is not for him, as a black man. Maybe it wasn’t for him before the Civil War (a debatable but legitimate point) but the Reconstruction Amendments gave very clear rights to people based on race, color or previous condition of servitude, much as the original text written in the late 1700s had recognized certain Native American rights.

But to extend the meaning of “race, color, or previous condition of servitude” to other categories that have nothing to do with race, color, or servitude is to twist the text, not interpret the text.

There is a place under the concept of “original intent” to say that a law should be interpreted broadly if clearly intended to be implemented broadly. That can correctly be done with the Reconstruction Amendments designed to end slavery and prohibit legal discrimination against people on the basis of race, color, or former state of servitude.

However, that principle has been horribly abused for nearly nine decades since the era of FDR by too many liberal judges whose views of “justice” overrode the text of the actual laws in front of them and made decisions based on their own views of what “justice” meant on issues utterly unrelated to the Civil War settlement or to civil rights.

Now that we have a 6–3 conservative majority on the US Supreme Court, we will likely see more and more situations in which conservative justices, and conservative judges in lower courts, look at the text of the laws and come up with conclusions that surprise liberals.

The answer will end up being in many cases that a judge says, “What I think about the law doesn’t matter. What matters is that the people’s elected representatives passed this law. This is what the words say, this is what the words mean, and it’s not my place to replace the will of the people, expressed through their elected legislators or Congressmen, with my unelected opinion.”

That’s the proper role of a judge.

If we don’t like the law, there’s a proper procedure to change it, and that procedure involves elections, not judicial fiat of unelected black-robed judges.