The Supreme Court’s Liberals Respect the Rule of Law. Could Roe Be Next?

In McGirt v. Oklahoma, the liberal majority demands that Congress do its job and not let the courts decide.

By David Mills Published on July 9, 2020

It was a victory for the rule of law, and one that should make liberals happy. The Supreme Court ruled today that a law Congress made a long time ago still applies. The law is the law, until the law-maker changes it. Not a court, a law-maker.

In McGirt v. Oklahoma, the Court declared that states can’t ignore the law and courts can’t overrule it, just because it’s now inconvenient or difficult. They can’t ignore or overrule it because officials have ignored it for a long time. The law’s the law.

The decision involves the status of Native American land in Oklahoma, on the narrow question of who has criminal jurisdiction. It hinges on technical questions of what defines “Indian country” and whether that part of the state had lost that status. I have no opinion on any of that. The decision interests me for what the majority said about the nature of the law.

And what they said may perhaps make clearer to them the need for judges and justices to do their job. And not take power they should not have. To remember that they’re umpires, not rule-makers. If they remember this, they might overturn Roe and Obergefell

Congress Must Say So

“Many of the arguments before us today follow a sadly familiar pattern,” the majority says. Newish justice Neil Gorsuch wrote the majority opinion, joined by the four liberal justices. “Yes, promises were made, but the price of keeping them has become too great, so now we should just cast a blind eye. We reject that thinking.”

And why? “If Congress wishes to withdraw its promises, it must say so. Unlawful acts, performed long enough and with sufficient vigor, are never enough to amend the law. To hold otherwise would be to elevate the most brazen and longstanding injustices over the law, both rewarding wrong and failing those in the right.”

The decision includes lines like this: “Under our Constitution, States have no authority to reduce federal reservations lying within their borders.” The majority then explains why this would be a bad thing. States could nullify Congress’s action by breaking the agreement little by little, and that still violates the Constitution. Letting that happen puts at risk the people the law was created to protect. It “would also leave tribal rights in the hands of the very neighbors who might be least inclined to respect them.”

The next paragraph is just as good. “Likewise,” the Court declares, “courts have no proper role in the adjustment of reservation borders. Mustering the broad social consensus required to pass new legislation is a deliberately hard business under our Constitution.”

The majority explains that “faced with this daunting task, Congress sometimes might wish an inconvenient reservation would simply disappear. … 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.” Congress may have broken a lot of its promises to the tribe. But “if Congress wishes to break the promise of a reservation, it must say so.”

The Justice’s Authority

In McGirt, the majority recognized the limits of their authority in a way they don’t always do. The majority didn’t see it in Roe v. Wade, nor in Obergefell. They claimed the right to make law, over-riding laws the authorized lawmakers had already made.

They tried to claim constitutional authority, but only by stretching the implications of the Constitution very far. Roe depended on the invention in an earlier decision of a “zone of privacy” found not in the words of the Constitution, but in “penumbras, formed by emanations” of rights the Constitution stated.

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The majority could have reasoned the same way here. They could have found in some penumbra formed by an emanation the idea that laws too long ignored cease to bind anyone. They could have called it “the right to stability.” The five justices didn’t.

They said the law the Congress made remains the law till Congress changes it. If only they would say the same thing about abortion and marriage.

We can guess why they don’t. They defend the rule of law when the issue is a technical matter of legal jurisdiction that affects very few people. They care very much about the legal right to abort a child and to marry whomever you want.

Modern liberalism insists on sexual freedom above all things. The Constitution and the rule of law can’t be allowed to stand in its way.


David Mills is a senior editor of The Stream. After teaching writing in a seminary, he has been editor of Touchstone and the executive editor of First Things. He edits the site Hour of Our Death and writes the monthly “Last Things” column for the New Oxford Review and a weekly column for the English Catholic Herald. He is finishing a book on death and dying to be published by Sophia Institute Press.

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