McGirt

July 9, 2020 — Part 1

Some thoughts about today’s decision in McGirt v. Oklahoma:

Today the Supreme Court issued its final opinions for this term, and there were some whoppers! I’ll eventually get around to commenting on the two Presidential subpoena cases, but first I want to say a bit about McGirt v. Oklahoma.

By a vote of 5-4, the Supreme Court held that 3 million acres of land in Oklahoma (including most of Tulsa) is still technically a reservation for the Creek Nation. The majority opinion was written by Justice Gorsuch (a Trump appointee), and the dissent was by Chief Justice Roberts (a George W. Bush appointee).

Both opinions are long and complicated and deal with a highly specialized area of law (federal Indian law). Despite having taken a course in the subject, I found both opinions to be tricky reading, and my sense is that this was genuinely a tough call for the Court. In other words, there were strong arguments made in good-faith on both sides. 

Instead of focusing on the nitty-gritty details of this particular decision, I want to consider what Justice Gorsuch’s opinion can teach us about his approach to serving on the Court (his “judicial philosophy,” so to speak).

When it comes to statutory interpretation, Justice Gorsuch is a self-proclaimed textualist. Just a few weeks ago, his textualist method produced a “liberal” result in a case about LGBTQ rights under federal law. (I put scare quotes around “liberal” because part of my goal with these posts is to get people to question whether a liberal-versus-conservative frame is actually a fruitful way to understand the work of the Supreme Court. 😜) Anyhoo… As Justice Gorsuch wrote in the Bostock case, “When the express terms of a statute give us one answer and extra-textual considerations suggest another, it’s no contest. Only the written word is the law, and all persons are entitled to its benefit.” 

In McGirt, Justice Gorsuch believed that the Court was yet again facing clear texts that essentially dictated today’s outcome. The texts at issue were federal treaties from the 1830s (yes, the 1830s!) which said that “[t]he Creek country west of the Mississippi shall be solemnly guarantied to the Creek Indians” and that no State would “ever have a right to pass laws for the government of such Indians, but they shall be allowed to govern themselves.” 

Faced with those texts, Justice Gorsuch explained: “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.”

So here’s what I find interesting. When Justice Gorsuch confronts a text written by Congress (like a statute or a treaty), it seems that he has a particular thought in the back of his mind: If Congress wants to change this statute or this treaty, it can. So if I, Justice Gorsuch, do my best to read the text as it is written, but Congress ends up disliking the practical consequences of my reading, then Congress can always pull itself together and change the law. 

He basically says this at the end of his opinion in McGirt: “Congress remains free to supplement its statutory directions about the lands in question at any time. It has no shortage of tools at its disposal. … If Congress wishes to withdraw its promises, it must say so.” 

We can set aside our feelings about the outcome of this particular case and reflect on what Justice Gorsuch is doing with his textualist methodology. In a way, he is trying to put the ball back into Congress’s court when it comes to substantive, politically fraught decision-making. Congress should say what it means and mean what it says (and change laws if/when it wants to change substantive outcomes).

Full disclosure: I’m not fully on board with Justice Gorsuch’s textualist methodology, particularly when the Supreme Court is facing a very broad, open-textured provision in the Constitution. (For example, I don’t believe there is a simple textualist way of understanding what “the freedom of speech” means.) But my main point is that when Justice Gorsuch decides a case, he seems to be doing so based on a good-faith conception of what his role as a Justice requires — not based on partisan politics. 

These days, it seems to be conventional wisdom (or cynicism) that the Justices are nothing but partisan hacks. But please try to keep an open mind that something other than pure partisanship is at play. The next time someone tries to tell you that “Justice X voted that way because he is a Democrat!” or “Justice X voted that way because she’s a Republican!”, stop and consider the possibility that that story might not be true. Even when it comes to your least favorite Justice (whoever that is!), consider the possibility that he or she has a genuine, good-faith reason for voting the way they do.  ❤️