Textualist Gorsuch and the Oklahoma Reservation

Wall Street Journal letter   (This letter was in response to a Wall Street Journal editorial “The Tempting of Neil Gorsuch” criticizing Judge Gorsuch for joining the four liberal justices in ruling that much of eastern Oklahoma was still an Indian reservation.  Congress had passed a law creating the reservation and never repealed or replaced it. Chief Justice Roberts and the minority “Conservatives” reasoned that the Court should look at “all the surrounding circumstance” rather than just the statutes.)

Justice Gorsuch is behaving exactly as a judge should. It is not the role of a judge to divine unwritten congressional intent in the absence of ambiguity in what Congress did write. That is the path to judicial activism—no less offensive when one is happy with the outcome.

The perennial uproar over the appointment of Supreme Court justices arises from the notion that the court is some sort of super-legislative body empowered to supply a remedy for the omissions of Congress. Your editorial, alas, encourages that view.

Brian R. Merrick

West Barnstable, Mass.

The writer  is a retired Massachusetts District Court judge.

7 Comments Add yours

  1. Doug Louison says:

    WSJ doesn’t publish just anybody’s letter.
    Nice.

    Like

  2. R C Aizley says:

    “Justice Gorsuch is behaving exactly as a judge should. It is not the role of a judge to divine unwritten congressional intent in the absence of ambiguity in what Congress did write.” Agreed. Also, did you read today’s GOYA article re Robert Unanue, CEO? I have been involved in all their business interruption claim preparations for the past 15 years. The semi in my semi retirement.

    Like

  3. Paul Mahoney says:

    I read the article in the Journal but your letter to the editor clearly explained Justice Gorsuch’s position for me. Now can you speak to
    Justice Roberts?

    Like

  4. dudleye says:

    Right on the money my friend!!!

    Dudley

    >

    Like

  5. Robert Aizley says:

    Sent from my iPhone

    >>

    Like

  6. bob.k.sheridan@gmail.com says:

    Right on. Well said. Law not politics.

    Sent from my iPhone

    >

    Like

  7. Bert says:

    Bravo

    Sent from my iPhone

    >

    Like

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