Gorsuch is a joy to read because he mixes in history with some interesting side comments.

I spend a lot of time in the summers reading SCOTUS opinions, and I have to flatly disagree with this. Gorsuch peppers in these comments and they distinctly detract from the legal reasoning in the Opinion. It’s cute, but superfluous and further turns justices into “rockstars” to be cheered, which is bad.

this is like commenting code - who is the code meant to be written for? other programmers, or the compiler?

No, this is nothing like commenting code. These comments are not meant for other "programmers" (i.e. Justices). They're meant for the public, which doesn't compile anything with regard to the Supreme Court.

No, they're meant for other Justices, too, as well as for judges and lawyers beyond the Supreme Court. They're annotations describing the rationale for a decision - the "why" of the verdict - in as much detail as possible, which I reckon to be invaluable to anyone else needing to go back and evaluate that decision and determine its implications.

Sorry, still disagree. Contrast an opinion from Thomas or Breyer (or even Kennedy for that matter) with this one from Gorsuch. The quips and trite verbiage are absent. And for good reason: it's not serious, and it's something people latch on to instead of the legal text of the opinion, especially today in the world of twitter and memes. People like the idea of Ginsberg as a feminist icon because of her terse dissents and demeanor but that's actually really kind of terrible. This isn't her fault - her opinions are absent of this kind of flowery language. They're to the point and well written. So I guess my point is Gorsuch is just asking for it - to be a pop culture thing. We should not want this of the High Court.

>the "why" of the verdict

SCOTUS doesn't have "verdict[s]".

I'm not a lawyer but I've read probably 200+ opinions for fun over the last decade, listened to maybe 100+ oral arguments. I really love following the Court, and I probably have an allergic reaction to these people growing beyond their britches (they are unelected, after all).

Surely the public (ie. non-lawyers) are a vanishingly small proportion of the people who read beyond the syllabus?

If it makes more people interested in reading legal rulings - and in this case, realize that all of eastern Oklahoma belongs to the tribes - it's a good thing. Awareness is important in rulings like this. This ruling was necessary because a lot of people "forgot" that eastern Oklahoma was given to the tribes.

Originalism is degenerate legal philosophy. Textualism is all that is valid. We will look back at some of those ridiculous uncited rulings that speak about “how the writers felt given the time” as foolishness.

Even textualism is an interpretive process by very human judges.

Coming across these terms for the first time, and after reading some material online, it seems these two ideas are mildly compatible? Especially with Justice Scalia being identified as both a originalist and textualist. Would you mind explain the difference?

In both cases, the Justice decides based on personal preferences or ideological agenda, but in one case the rationalization is based on cherrypicking snippets from contemporaneous sources to speculate about what authors or supporters (of a statue, treaty, constitution, ...) originally meant long ago, and in the other case the rationalization is based on nitpicking the vocabulary and grammar of the document.

Both conveniently allow the Justice to pretend that their opinion is completely neutral/technical with no personal choice involved, even in cases where the justification is tendentious to an absurd extreme, and to attack those who disagree as radical unprincipled activists with no respect for the rule of law. They absolve the Justice from taking responsibility for the consequences of the decision.

Both originalism and textualism are easily shed by their adherents when insufficient originalist/textualist justification can be found for the desired decision, and following the obvious original intent and plain textual meaning of the statute would lead to an outcome the Justice dislikes.

(I have no real expertise on this; I'm just relaying my understanding.)

Textualism involves interpreting words with the same meaning that they would have had at the time whey were written.

Originalism involves interpreting words in the same way they would have been intended at the time when they were written.

To express the crux of the difference, I've seen multiple sources use the example of "cruel and unusual punishment".

Textualism would look at the words: what did "cruel" and "unusual" mean in the 1790? Do those definitions describe a particular punishment?

Originalism would instead consider intent: would a particular punishment have been considered to be "cruel and unusual" in 1790?

Beyond the obvious, what they have in common is what they don't consider: purpose, history, or present meaning.

For fun:

Purposivism would consider the purpose of the clause: is a punishment the sort of thing the clause was written to protect against?

Doctrinalism would look at the way the clause has been interpreted by the court in the past: how does the punishment under consideration compare to punishments previously considered cruel and unusual?

Structuralism would examine the clause and its relationship to the rest of the document in which it was written: perhaps the fact that the clause follows "Excessive bail shall not be required, nor excessive fines imposed ..." offers guidance.

Judicial pragmatism would consider the context, apply inductive reasoning, and consider the future implications of a ruling. (I don't think I've summarized this one well https://www.iep.utm.edu/leglprag/#H2 may be useful.)

History is relevant to both originalism and textualism in different ways. Originalists look to what the writers intended the words to mean. (This is how we interpret contracts in Anglo legal systems.) Textualists disregard what the writers intended, but do care about what the words meant at the time they were written.

This often leads to the same result, but can sometimes produce divergent results. The drafters of the equal protection clause of the 14th amendment, for example, probably didn't intend to create a framework for striking down laws that treat women differently than men. Ginsberg's brilliance as an attorney was to make essentially textualist arguments that convinced courts that--regardless of what the drafters meant to say, the words they actually used plainly apply to discrimination between the genders is it did to discrimination between races.

Which justices do you believe follows originalism, which follow textualism, and which follow neither?

Is there a more textual judge than Gorsuch?

Easily Breyer.

Gorsuch is definitely my favorite Justice. His opinions are always fun to read. You know when the words "Trail of Tears" appear in the first sentence of a decision that things aren't going to turn out well for the government...

Haha, yeah I love how he upheld that states can use lethal injection even if they can't get the right ingredients, what a baller.

Haha, yeah I love how he thinks that the government shouldn't have access to our data without a warrant, period, full stop and that the 3rd party doctrine and "reasonable belief" doctines should be repealed.

It's unlikely that we will effectively review the totality of Gorsuch's opinions in a HN thread. Let's just say he's an interesting justice.

Whether justices should be interesting is itself an interesting question.

You can disagree with someone on one topic, and agree with the same person on a different topic.

the law is not morality. he interprets the law.

The entire city of Tulsa is there - literally millions of non-native Americans live in this area.

Congress will have no choice but to make a law breaking the promise and repatriating the land out of Native American hands.

> Congress will have no choice but to make a law breaking the promise and repatriating the land out of Native American hands.

Oklahoma seems to have only five US Representatives (and two senators of course). It would be ridiculous if seven Congress members can hold a nation hostage.

I don't understand the full implications of this ruling but I don't see how I can support breaking more promises because of political gamesmanship over five representatives out of four hundred and thirty five.

From what I read in this thread, all crimes will still be prosecuted, but by a federal court of law. I don't see a problem.

What do you mean? One senator has been holding the nation hostage for years. One.

The only reason one senator can hold the nation hostage is because he has the support of the majority of senators.

Representing a minority of the United States's population.

That's obviously not true. He LEADS the others who choose to follow him and use him as a scapegoat. Big difference.

I'm out of the loop here, what are you referring to?

I'm guessing that they're referring to Mitch McConnell

What is he doing? Mostly looking for a few good keywords to google the issue.

He's the Senate majority leader. The above comment is not correct, one senator is not holding the nation hostage. The majority of the Senate is. The Senate majority leader just happens to be one of the more senior members of the majority party in the senate. Mitch McConnell, as far as legislating goes, is no different from any other Senator.

Well, one senator can hold up the nation easily enough with the filibuster or denying unanimous consent. Senators are very powerful and the Senate is explicitly designed to stop anything from happening. Most other countries have less powerful upper houses.

Yes, the compromise was to say all states are equal which is a ridiculous idea. I just don’t see a better way though. How does the European Union handle things? Does Latvia have the same vote as Germany? Or does nationality not matter because things are run by technocrats? I’d imagine at some point the elected representatives hold the decision makers accountable?

As far as I know, he's described himself as the "Grim Reaper" for progressive policies [0]. Now, I'm no expert but as the majority leader, he

> schedules the daily legislative program and fashions the unanimous consent agreements that govern the time for debate [1]

and

> has the right to be called upon first if several senators are seeking recognition by the presiding officer, which enables him to offer motions or amendments before any other senator [1]

- [0]: https://thehill.com/homenews/senate/440041-mcconnell-pledges...

- [1]: https://www.senate.gov/artandhistory/history/common/briefing...

He's an obstructionist. The plan is to block everything, no compromise. He's even taken contradicting stances when the other side raises an issue he previously supported.

I think that's the intent of the ruling, actually. Part of the conclusion says "If Congress wishes to withdraw its promises, it must say so."

Sometimes I wish the SCOTUS would reinterpret things that were obviously wrong... but I'd much rather have the SCOTUS interpret the law as it was intended, and have Congress fix the actual problems with the law.

“As intended “ isn’t “as it is written “. See the recent ruling that came down saying that LGBTQ people are protected under the civil rights act of 1967 because the words are very plainly written. Just because the people in congress probably didn’t intend to protect the LGBTQ community given the culture at the time the WORDS of the law are very clear.

"As intended" versus "as written" really depends on the law being discussed and the justice interpreting the law. For example, constitutional scholarship seems to lean heavily on interpreting the law by its intent rather than purely by the words

I mean.... that case was neither "as it is written" nor "as intended".

In that case the court simply ruled on what was morally right.

LGBTQ people were not intended to be protected in the 1967 law, nor was it written as such.

I agree they deserve protections and Congress should amend the law as such. It's sad SCOTUS is made to break its role to fix this.

>> obviously wrong

Who can say what this is?

There's quite a variety of ways that the Five Tribes and the State of Oklahoma / the federal government can resolve this, two of the extremes being "Congress formalizes its reneging on its treaties with the Five Tribes, thus fucking over Native Americans yet again, but in writing this time" and "Tulsa experiences karmic retribution in the form of Trail of Tears 2: Electric Boogaloo".

Hopefully neither happens, and instead we get something that at least tries to work to the interests of both parties, e.g. "non-tribal residents are allowed to stay but are subject to tribal law (and pay "state" taxes to applicable tribal authorities instead of Oklahoma)" or "Oklahoma and/or Congress pays the Five Tribes a fair price for lands already occupied by population centers (e.g. Tulsa) and releases the rest to respective tribal authorities" or somesuch. Or perhaps something even crazier, like "the Five Tribes make another attempt at founding the State of Sequoyah" (with Tulsa being a decent-enough candidate for becoming a state capital).

Realistically, though, knowing this country's tendencies toward addressing hard-to-solve issues, the most likely outcome is "nothing changes and Schrödinger's Indian Reservations continue to simultaneously exist and not exist".

The ruling is about whether or not the state can enforce state law on Native Americans on this land. It doesn't change whether or how Oklahoma law applies non-native Americans.

What are the consequences to people in Tulsa who aren't tribe members? Landowners who aren't tribe members? Can the tribe expel them and confiscate the land?

Nothing. The tribe members lost that land with the Dawes Act before Oklahoma was a state.

https://en.wikipedia.org/wiki/Dawes_Act

Real estate prices will likely drop.

nobody knows what will happen yet. This is just opening page of that book.

Or they won’t?