Justice Gorsuch & Originalism

The topic of originalism as a judicial philosophy blossomed during the political foray which was the confirmation battle of Republican Senators to appoint 10^th Circuit Court of Appeals Judge Neil M. Gorsuch to fill the seat of the late Associate Justice of the Supreme Court, Antonin Scalia, in 2017. Oftentimes, Senate Democrats will opine on the philosophy of originalism as being a regressive force, uprooting “much of modern political and economic life” if permitted greater influence. However for Justice Gorsuch, he seems to have had a positive effect on Indigenous rights and liberties.

As every Article III judge during confirmation hearings to a federal lifetime appointed bench,  they will face a series of unsparing questions about judicial philosophy, one of the most likely will be their views on originalism, a judicial philosophy of both the late Justice Scalia and Justice Gorsuch. Originalism itself is the belief that “the constitutional text ought to be given the original public meaning that it would have had at the time that it became law,” thus the use of this philosophy would be expected to preclude the chance that an activist judge, or judge with purposeful malintent, would be able to negatively interpret and establish a precedent.

This judicial view of how to interpret case law became popularized during the 1980s; one, through the national emergence of conservative scholars within the Federalist Society which sought to curtail an increasingly powerful judiciary; and two, Justice Scalia’s rigorous “commitment to his personal judicial philosophy” which inspired many young legal scholars. It is because of this growing field of scholarship for over the last forty years that have contributed to shaping may accomplish legal minds of today, most notably Associate Justices Clarence Thomas, Brett M. Kavanaugh, and Amy Coney Barrett. It is because of the potential alarm for law to be mal-applied as a result of political, judicial activism that Justice Gorsuch made clear his intent to protect Indigenous Americans’ tribal authority through established law.

Evidence for Justice Gorsuch’s application of originalism to codify Native American rights can be found stretching as far back as his eleven years of service to the 10^th Circuit Court of Appeals. Some of the notable cases, which then-Judge Gorsuch was crucial in deciding, related to such important matters as those of the government’s adherence to government-trustee law, tribal sovereignty, and religious freedom. Following the discovery of oil and gas reservoirs within the Osage tribal territory of Oklahoma, Congress passed the 1906 Act, granting of fiduciary responsibilities over the tribe. In 2013, the Osage appealed their dismissed case to the 10^th Circuit Court where the district court’s decision was reversed and remanded in Fletcher v. the United States, 730 F.3d 1206 (10th Cir. 2013), holding that the 1906 Act was meant to favor the Osage tribe notwithstanding interpretive statutory ambiguities. When it came to protecting tribal sovereignty, Judge Gorsuch once again applied originalist principles in Ute Indian Tribe v. State of Utah, 790 F.3d 1255 (10th Cir. 2015), finding in favor of the Ute Tribe that local and state prosecution of crimes committed on tribal lands was apart of “a renewed campaign to undo the tribal boundaries”.

Though the last two instances may have been less relatable, no right is more widely shared and revered than that of the ability to practice one’s own religion and faith, a no less appreciable right of Indigenous Americans. Yellowbear v. Lampert, 741 F.3d 48 (10th Cir. 2014) was a case in which Northern Arapaho tribesman, Andrew Yellowbear, sought injunctive relief through the Religious Land Use and Institutionalized Persons Act (RLUIPA) for permittance to use a sweat lodge during his custody, as per his culture, off tribal lands. In a unanimous ruling for Mr. Yellowbear, Judge Gorsuch’s panel found that there was a lack of compelling government interest to deprive an Indigenous American of their religious rights, afforded through RLUIPA, only because of financial or physical burdens. Justice Gorsuch’s determination to view legal texts and statutes through the lens of originalism, in an effort to “hold the government at its word”, is a practice as circuit judge which he has maintained into the high bench.

Despite it only having been approximately four years since his ascension to the highest court in the land, Justice Gorsuch already plays a decisive role with interpretive legal texts in defining American Indian Law precedence. While there was much concern swirling about Justice Gorsuch’s philosophical role in damaging positive progressive change as “a solidly conservative vote on the Court”[12], his most recent rulings has proven to show a more solid defender of minority groups, especially Native Americans. For example, in four recent Supreme Court cases concerning Native Americans – Herrera v. Wyoming, and Washington State Dep’t of Licensing v. Cougar Den, Inc. (2019), as well as landmark McGirt v. Oklahoma (2020) – Justice Gorsuch had been the deciding justice to rule in their favor, primarily because of originalist and textualist interpretations of law, and their origination from the circuit he knew so well. Of these four cases where he cast the deciding vote in favor of the tribe in involved, McGirt stands out as one of the most significant tribal cases in recent history, primarily because of the majority’s ruling that tribal reservations have criminal, adjudicative jurisdiction over their established territories. This holding was found to be established law, which would contravene the Oklahoma Enabling Act of 1906 which established its authority over tribal lands and crime, to which Justice Gorsuch, speaking for the majority, wrote “unlawful acts, performed long enough and with sufficient vigor, are never enough to amend the law”, thus originalism prevailed and nullified the act.

Justice Gorsuch’s commitment to originalism’s principles “seeks to conserve the meaning of the Constitution as it was written”, which ultimately preserves the rule of law. While conservatism is a core tenet of the Conservative political movement, conservatism of law’s original intent can also be extremely useful to the maintenance of many laws established which protect the oftentimes unprotected, like that of minority groups through precedence like that of Brown v. Board of Education.