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.
” Rappaport argued in an email that the court is not an originalist court, but rather “one that sometimes decides things based on originalism.” Defenders of the ruling have tended to focus on the outcome, which is aimed at preventing a cascade of similar actions throwing presidential candidates off the ballot in other states, rather than the methodology.
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