Learning Resources, Inc. v. Trump · ¶188

Justice Gorsuch seems to disagree, pointing to a few late 19th- and early 20th-century cases.See ante, at 267– 268 (concurring opinion). But these cases, like our modern ones, are consistent with my context-based approach: They focus on ascertaining, not shaping, what the statute in dispute communicates. See, e. g., ICC v. Cincinnati, N. O. & T. P. R. Co., 167 U. S. 479, 511 (1897) (concluding that Congress “did not intend” to give interstate commission power to set railroad rates); Siler v. Louisville & Nashville R. Co., 213 U. S. 175, 196 (1909) (reasoning that “the legislature never intended to and did not in fact” give a state commission power to set maximum railroad rates). I would not treat this evidence as precedent for a judicial fex. Justice Gorsuch proposes to do something new. The innovation is in significant tension with textualism, so I do not support the project.

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