In 1950, United States Supreme Court (SCOTUS) Justice Felix Frankfurter wrote “It is a fair summary of history to say that the safeguards of liberty have frequently been forged in controversies involving not very nice people.” Jimcy McGirt is not a very nice person.
In 1997, McGirt was convicted in an Oklahoma state court of molesting, raping, and forcibly sodomizing a four-year-old girl. Last week, in McGirt v Oklahoma, the SCOTUS said McGirt is entitled to a new trial, not because there is any question of his guilt, but because he was prosecuted in the wrong court.
In the process, the Court held that nearly half of Oklahoma, including most of Tulsa, is “Indian Country” which belongs to the descendants of those who suffered along the infamous ‘Trail of Tears”.
McGirt, a member of the Seminole Nation of Oklahoma, claimed because the crimes he committed occurred within the borders of land promised by Treaty to the Creek Nation in the 1830’s, he could not be prosecuted in an Oklahoma state court. He claimed he was entitled to a new trial in a federal court, because Oklahoma state courts have no jurisdiction in “Indian Country” .
A majority of the SCOTUS agreed. They held that since Congress made a Treaty setting the boundaries of “Indian Country” the US government is bound by it. More importantly for the rule of law and liberty, the Court said it doesn’t have the authority to change the terms of the Treaty.
The State of Oklahoma argued that the boundaries of the “Indian Country” established by the Treaty had been eroded by other legislation since they were originally established. But the Court’s majority said only Congress could change the boundaries – and that in the two centuries since the Treaty, Congress has not done so.
Trump appointed Justice Neil Gorsuch, writing for the majority, said:
Mustering the broad social consensus required to pass new legislation is a deliberately hard business under our Constitution. Short of that, legislators might seek to pass laws that tiptoe to the edge of disestablishment and hope that judges — facing no possibility of electoral consequences themselves — will deliver the final push. But wishes don’t make for laws, and saving the political branches the embarrassment of disestablishing a reservation is not one of our constitutionally assigned prerogatives.
In other words, don’t expect the Courts to make decisions elected legislators are too embarrassed to make.
Justice Gorsuch based his decision on the limited role of the judiciary as originally intended by the drafters of our Constitution. Which means also that (just like those seeking to steal Creek reservation lands) social justice “activists” who can’t muster sufficient votes to force their progressive agenda down our throats, shouldn’t be allowed to end-run democracy by filing lawsuits to get courts to do what elected legislators won’t.
SCOTUS justices who (like Gorsuch) believe in the limited power of the judiciary is why at a 2:30am (EST) on November 9, 2016, Donald Trump had already accomplished his most important task as President. That’s the point in time at which he secured sufficient Electoral College votes to win — thus keeping Clinton from being able to appoint activist justices who would usurp democracy in favor of an oligarchy comprised of un-elected, life-tenured lawyers imposing a socialist agenda.
So the case of Jimcy McGirt, a “not very nice person”, provided the SCOTUS the opportunity to hold the U.S. government to a promise it made the Creek Nation nearly 200 years ago. And, more importantly, the opportunity to re-assert the limits on judicial power as intended in the Constitution.
For McGirt, it means he gets a new trial in a federal court — where he will hopefully be again convicted and sent back to prison for life. The Creek Nation gets the land it was promised for being forced along the ‘Trail of Tears from their ancestral homelands.
For the rest of us it means more freedom because the case stands for the proposition that the role and authority of judges is limited. That means less opportunity for those wanting to use activist judges who, “facing no possibility of electoral consequences themselves” will impose a socialist agenda at the cost of our individual liberty.
Gary Beatty lives between Florida and Pagosa Springs. He retired after 30 years as a prosecutor for the State of Florida, has a doctorate in law, is Board Certified in Criminal Trial law by the Florida Supreme Court, and is now a law professor.