The judiciary is supposed to have one guide when forming fresh perspectives: the Constitution. As they examine the constitutionality of laws and other government actions, they often refer to previous rulings as precedent while looking for similar rulings as justification for leaning one way or another, but at the end of the day it’s the Constitution alone that is supposed to guide their judgments. That’s why we should look for judges who have originalist perspectives, not necessarily conservative ones (though, let’s be honest, the vast majority of originalist perspectives will align with a conservative perspective).
Part of conservatism is conserving the original intent of a law, or in the case in question, a treaty. The Yakama Tribe signed a treaty with the United States government that gave them control of a huge amount of tribal land in Washington state. Part of the exchange included the ability for Yakama traders to use U.S. highways for free.
Washington charges per gallon for fuel trucked in from out of state. One Yakama company claimed the 1855 treaty meant they were not to be charged this tax. The decision in the Supreme Court went mostly along expected political leanings with the “conservative” Justices wanting to charge the tax and the “leftist” Justices siding with the Takama Tribe. The tiebreaker turned out to be Neil Gorsuch, who went to the “leftist” side but with the only conservative reasoning to drive a vote.
The dissent claimed the treaty allowed for free passage on highways just as any American citizen can travel, but that the taxes set by Washington must still be paid. Only Gorsuch recognized that the original intent of the treaty was to grant the tribe free passage, as in free of charge regardless of what the U.S., state, or local governments wanted to charge. This is the right perspective. It’s the conservative perspective.
Sad that the "conservatives" in the Supreme Court other than Neil Gorsuch were willing to abandon the original intent of a treaty to play party politics. This should have been a unanimous decision. Disappointed in Thomas most of all. https://t.co/iBIcZB2FnG
— JD Rucker (@JDRucker) March 20, 2019
Should the other Justices who voted like Gorsuch get kudos as well? Probably not. I haven’t read their statements, but it’s safe to assume they ruled based on the party politics of supporting Native American rights whether they’re justifiable or not. Gorsuch ruled based on a proper interpretation of the treaty.
Conservatism and originalism go hand-in-hand when judges take the politics out of what they do. It’s hard. I’m not a judge so I shouldn’t… judge. But this seems to be a case where party politics played too much of a role. Gorsuch was right.
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