Did you know that the Supreme Court gave away half of Oklahoma to Amerindian tribes last week? You probably didn’t hear a lot about it.
Most media attention focused on the high court’s rulings on President Trump’s legal battles, yet the Oklahoma decision may prove to be far more important. And this liberal decision was authored by none other than Trump’s first court appointee, Neil Gorsuch.
The case, McGirt v. Oklahoma, centered on an Oklahoma man, Jimcy McGirt, who was convicted of sexually assaulting a 4-year-old in 1997. McGirt demanded the overturning of his state conviction on the basis that he is a member of the Seminole Nation and his crime allegedly took place within the Creek Nation’s jurisdiction. He claims the court that convicted him doesn’t have jurisdiction over where the crime occurred. The court’s four liberal justices and Gorsuch agreed with McGirt’s request and issued a majority ruling that recognizes nearly half of Oklahoma as Indian territory.
“On the far end of the Trail of Tears was a promise. Forced to leave their ancestral lands in Georgia and Alabama, the Creek Nation received assurances that their new lands in the West would be secure forever,” Gorsuch wrote in the majority opinion. “Today we are asked whether the land these treaties promised remains an Indian reservation for purposes of federal criminal law. Because Congress has not said otherwise, we hold the government to its word.”
This ruling effectively bars Oklahoma from properly governing the eastern half of the state. Even Chief Justice John Roberts, a notorious squish, thinks this ruling will hobble Oklahoma from enforcing the law and overturn “decades of past convictions.”
“On top of that, the Court has profoundly destabilized the governance of eastern Oklahoma. The decision today creates significant uncertainty for the State’s continuing authority over any area that touches Indian affairs,” Roberts wrote in the dissent joined by the three other conservative justices.
Oklahoma’s lawyers also informed the court that a ruling in favor of McGirt would harm state governance. “The State generally lacks the authority to tax Indians in Indian country, so turning half the State into Indian country would decimate state and local budgets,” the state’s brief explains. Oklahoma also claims the ruling will impede custody disputes and other legal matters.
Gorsuch dismissed these concerns in his ruling: “Dire warnings are just that and not a license for us to disregard the law. By suggesting that our interpretation of Acts of Congress adopted a century ago should be inflected based on the costs of enforcing them today, the dissent tips its hand.”
Gorsuch believes the only way for Oklahoma to regain sovereignty over its territory is for Congress to nullify long-dead treaties.
This is another example of Gorsuch offering the conservative case for selling out America.
Most readers are familiar with Gorsuch siding with the LGBT agenda last month. In Bostock v. Clayton County, Gorsuch authored the majority opinion that added sexual orientation to the categories covered by the 1964 Civil Rights Act. The originalist justice decided that the Act’s references to “sex” also included sexual orientation, even though the Act’s drafters clearly didn’t intend that meaning.
The ruling potentially opens religious institutions to endless litigation if they refuse to hire people on the basis of their sexual orientation. Catholic schools will be forced to hire transgender teachers and evangelical groups won’t be able to do anything if an employee comes out as gay. Gorsuch’s ruling says there may be religious exemptions to the LGBT mandate, but it has to be decided in future cases. Social conservative groups were not satisfied with that and felt betrayed by the ruling.
Less attention has been paid to Gorsuch’s stands on immigration and criminal justice. Gorsuch is not exactly an immigration hawk. In 2018, he struck down a Trump administration measure that deported criminal immigrants. Gorsuch ruled against the administration because officials didn’t properly specify what constitutes a “crime of violence.” The overruled policy would have deported all foreign nationals convicted of such an offense.
His immigration record as a circuit court judge earned liberal praise. FiveThirtyEight found Gorsuch sided with immigrants more often than his circuit court. In his rulings, he made it easier for illegal aliens to obtain legal status and hindered the enforcement of federal immigration law. He says his wife’s immigrant background informs his views on the issue.
He’s also the conservative Supreme Court justice with the most enthusiasm for reforming criminal justice. In 2019, he ruled with the liberal justices against a federal statute that mandates lengthy sentences for criminals who use a firearm in connection with federal crimes. Gorsuch wrote the majority opinion that said the statute was bad because it was “too vague.” The conservative justices, led by fellow Trump appointee Brett Kavanaugh, attacked Gorsuch’s opinion for transgressing on the separation of powers. The statute was created by Congress. Overruling Congress didn’t bother the “strict constitutionalist” Gorsuch in this situation.
He has also voted with liberal justices in other cases concerning harsh criminal sentencing and policing. This disposition matters as the court may soon hear cases inspired by the recent unrest and decide whether police deserve qualified immunity and other protections that allow them to do their job.
Gorsuch was touted as the most conservative justice when he was first appointed to the court. His record, while not quite as bad as Roberts’ or Kennedy’s (yet), doesn’t measure up to Antonin Scalia’s legacy. Gorsuch is a conservative who wants to be respected by liberals and will find “principled conservative” reasons for siding with them. This explains his many disappointments.