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From the actual opinion: "Oklahoma replies that its situation is different because the affected population here is large and many of its residents will be surpr
by zetazzed 6y ago
From the actual opinion: "Oklahoma replies that its situation is different because the affected population here is large and many of its residents will be surprised to find out they have been living in Indian country this whole time. But we imagine some members of the 1832 Creek Tribe would be just as surprised to find them there."
Damn, nice shade, Gorsuch!
https://www.supremecourt.gov/opinions/19pdf/18-9526_9okb.pdf https://www.supremecourt.gov/opinions/19pdf/18-9526_9okb.pdf
- protomyth 6y agoGorsuch is a joy to read because he mixes in history with some interesting side comments.
- remarkEon 6y agoI 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.
- dluan 6y agothis is like commenting code - who is the code meant to be written for? other programmers, or the compiler?
- remarkEon 6y agoNo, 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.
- yellowapple 6y agoNo, 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.
- remarkEon 6y agoSorry, 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).
- sjy 6y agoSurely the public (ie. non-lawyers) are a vanishingly small proportion of the people who read beyond the syllabus?
- Cthulhu_ 6y agoIf 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.
- modmans2nd 6y agoOriginalism 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.
- socraticmethod 6y agoEven textualism is an interpretive process by very human judges.
- jeffdavis 6y agoWhich justices do you believe follows originalism, which follow textualism, and which follow neither?
- rayiner 6y agoHistory 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.
- shard 6y agoComing 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?
- jacobolus 6y agoIn 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.
- koheripbal 6y agoThe 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.
- falcrist 6y agoI 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."
- JohnL4 6y agoAnd, so, in keeping with Gorsuch's minimalism. No re-interpretation of existing law, which makes the right happy (or did, until recently, I guess).
- falcrist 6y agoSometimes 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.
- deleted 6y ago[deleted]
- modmans2nd 6y ago“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.
- falcrist 6y ago"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
- shpongled 6y agoGorsuch 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...
- inputError 6y agoHaha, yeah I love how he upheld that states can use lethal injection even if they can't get the right ingredients, what a baller.
- shpongled 6y agoHaha, 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.
- arkis22 6y agothe law is not morality. he interprets the law.
- jeffdavis 6y agoIt'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.
- arp242 6y agoYou can disagree with someone on one topic, and agree with the same person on a different topic.