, 6 tweets, 3 min read Read on Twitter
1/ Washington v. Cougar Den provides a curious split on how to interpret an 1855 treaty. J. Breyer wrote opinion for #SCOTUS, joined by Sotomayor and Kagan. Gorsuch concurred in judgment only, joined by Ginsburg.
2/ I can think of two options. 1) At conference, the vote was fractured. Breyer assigned himself the majority, and RBG was content to join Gorusch. 2) RBG assigned Breyer the majority, but was so persuaded by Gorsuch, she abandoned Breyer's opinion, and joined Gorsuch #RBGIDGAF
3/ Breyer adopted treaty-originalism (as opposed to constitutional or statutory originalism). "The language of the treaty should be understood as bearing the meaning that the Yakamas understood it to have in 1855" The Yakamas were at a "significant [linguistic] disadvantage."
4/ Gorsuch employed the same form of treaty originalism.
5/ Gorsuch also threw a bit of shade at Washington's position, and Kavanaugh's dissent, w/ reference to "new lawyerly glosses conjured up for litigation"
6/ Gorsuch also throws some shade on CJ Robert's position in, what I think has to be, a subtle reference to NFIB: "the state could save the tax here by simply labeling it a fee." As opposed to saving a fee by labeling it a tax!
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