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…