In this term’s Supreme Court, every word counts
WASHINGTON – Conservatives are controlling most of the Supreme Court’s closely divided cases so far this term by sticking to the words written by Congress.
The justices have settled challenges involving the rights of workers, immigrants, prisoners and patent owners by painstakingly defining the meaning of “for,” “shall,” “any” and “other,” along with “satisfy” and “salesman.”
The result has been a series of 5-4 decisions written by justices Neil Gorsuch, Clarence Thomas and Samuel Alito that rely on “textualism” — letting the statutes under review speak for themselves. It’s what the late justice Antonin Scalia preached and what President Trump promised he would seek in choosing Gorsuch as Scalia’s successor.
“Since the court lost the foremost textualist in its history, you’d just naturally expect that it would have become a little less textualist. And that just doesn’t seem true,” says former U.S. solicitor general Paul Clement, who has argued more than 90 cases at the Supreme Court.
“The terms of the debate have shifted,” Clement says. “You don’t want to walk into the court without a textualist argument.”
This is what Gorsuch, the newest justice now entering his second year on the court, promised during his Senate confirmation in 2017 — to “try to understand what the words on the page mean, not import words that come from us.”
“If the words are plain, you stop,” Gorsuch said.
Thus it was last week, when Gorsuch refused to read into the National Labor Relations Act any rules for handling legal disputes under the Federal Arbitration Act. Gorsuch’s opinion for the court held that employers can insist that workers settle labor disputes individually through arbitration.
“This court is not free to substitute its preferred economic policies for those chosen by the people’s repre-