Damn the Consequences, Gorsuch Says

“So let the chips fall where they may
And let these matters be settled this way
We'll let our judgement get carried away”

Yesterday, the Supreme Court ruled, as described by Chief Justice Roberts in his dissent, that “a huge swathe of Oklahoma is actually a Creek Indian reservation, on which the State may not prosecute serious crimes committed by Indians.” Three and a half weeks earlier, the Court ruled that in forbidding workplace discrimination on the basis of sex, Title VII of the Civil Rights Act of 1964 forbade discrimination on the basis of sexual orientation and transgender status, a holding that Justice Alito’s dissent criticized for its “far-reaching consequences.” What do they have in common besides their potentially sweeping implications? Both are basically statutory (and, for the former, treaty) interpretation cases, both purport to adhere to the text of the relevant laws and disregard the consequences of the interpretations each adopts, and the majority opinion in each case was written by Trump appointee Justice Neal Gorsuch.

         

Yesterday’s decision in McGirt v. Oklahoma was joined by the four more liberal Justices (Ginsburg, Breyer, Kagan, and Sotomayor). It holds that an 1833 treaty between the United States and the Creek Nation established a reservation in what is now Oklahoma (and which encompasses most of Tulsa), and that the federal Major Crimes Act accordingly precludes state court prosecutions of Indians for major crimes committed in that portion of Northeast Oklahoma. Instead, any such criminal prosecutions would have to be brought by the federal government or the Creek Nation under their respective laws. In reaching its conclusion that subsequent federal laws did not disestablish the Creek Reservation, Gorsuch insists that “[w]hen interpreting Congress’s work in this arena, no less than any other, our charge is usually to ascertain and follow the original meaning of the law before us.” A court may not “favor contemporaneous or later practices instead of the laws Congress passed.” Explicitly emphasizing the point, the Court “restate[d] the point. There is no need to consult extratextual sources when the meaning of a statute’s terms is clear. Nor may extratextual sources overcome those terms. The only role such materials can properly play is to help ‘clear up . . . not create’ ambiguity about a statute’s original meaning.”

And the sweeping consequences of the Court’s decision were not a reason to change the meaning of the terms of the law. As the majority opinion summarized the argument: “If we dared to recognize that the Creek Reservation was never disestablished, Oklahoma and dissent warn, our holding might be used by other tribes to vindicate similar treaty promises. Ultimately, Oklahoma fears that perhaps as much as half its land and roughly 1.8 million of its residents could wind up within Indian country.” Yet the Court flatly rejected the argument, dismissing it because “dire warnings are just that, and not a license for us to disregard the law.”

This fealty to a textualism often indifferent to consequences where statutory text is viewed as clear  – reminiscent of Justice Oliver Wendell Holmes’s sense of duty as a judge to adhere even to “foolish” laws for “if my fellow citizens want to go to Hell I will help them. It’s my job” – also characterized Justice Gorsuch’s earlier opinion in the title VII case Bostock v. Clayton County, Georgia (discussed here). There, joined not only by the Court’s more liberal Justices but also by Chief Justice Roberts, Gorsuch insisted (with good reason) that discrimination on the basis of sexual orientation or transgender status is sex discrimination, and that Title VII therefor forbids it. His majority opinion was undeterred by the dissenters’ invocation of supposedly broad consequences of adopting that interpretation of the statute. Whether the objection was couched in terms of legislative intent or what the Court saw as the closely related notion of expected applications of a statute, Gorsuch rejected the idea that consequences of his statutory interpretation count as a reason to “decline to enforce the plain terms of the law.” This was true even though the interpretation the Court was embracing was monumental in its potential significance.

The Court in Bostock relatedly rejected the idea that “the no-elephants-in-mouseholes canon” of statutory interpretation – the idea that Congress does not hide major regulatory changes in minor statutory provision – supported the effort to limit Title VII’s notion of prohibited sex discrimination.

We can’t deny that today’s holding—that employers are prohibited from firing employees on the basis of homosexuality or transgender status—is an elephant. But where’s the mousehole? Title VII’s prohibition of sex discrimination in employment is a major piece of federal civil rights legislation. It is written in starkly broad terms. It has repeatedly produced unexpected applications, at least in the view of those on the receiving end of them. Congress’s key drafting choices—to focus on discrimination against individuals and not merely between groups and to hold employers liable whenever sex is a but-for cause of the plaintiff ’s injuries—virtually guaranteed that unexpected applications would emerge over time. This elephant has never hidden in a mousehole; it has been standing before us all along.

The fact that “undesirable … consequences” might follow from the Court’s interpretation of Title VII was a mere “naked policy appeal[,]” and to embrace that would abandon “any pretense of statu­tory interpretation.”

Justice Gorsuch’s ideas of what statutory text does and does not plainly say is contestable – as the dissents in these cases believed – but his textualist approach to statutory interpretation may lead him places that are more ideologically diverse than we might see were he not to profess that interpretive commitment.