After Trump ballot ruling, critics say Supreme Court is selectively invoking conservative originalist approach
WASHINGTON — Two years ago, conservative Justice Neil Gorsuch excoriated his conservative colleagues for ignoring history and the original understanding of the law in ruling for Oklahoma in a dispute over Native American tribal authority.
WASHINGTON — Two years ago, conservative Justice Neil Gorsuch excoriated his conservative colleagues for ignoring history and the original understanding of the law in ruling for Oklahoma in a dispute over Native American tribal authority.
The 5-4 ruling against tribes “comes as if by oracle, without any sense of the history ... and unattached to any colorable legal authority,” Gorsuch wrote in his dissenting opinion.
His complaint sounds a lot like the chorus of criticism from legal scholars on the left and right directed at the Supreme Court’s ruling last week that said states had no authority to kick former President Donald Trump off the presidential ballot.
For critics, it was just another example of how the conservative justices appear to selectively apply the legal methodology known as originalism, which focuses on the original meaning of the law at the time it was written.
The court, which has a 6-3 conservative majority, was unanimous in ruling that Section 3 of the Constitution’s 14th Amendment cannot be enforced by states, but critics were quick to point out the absence of originalist arguments.
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