Gorsuch Joins Liberals 5-4 With Second Surprise SCOTUS Ruling Today

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On Thursday, the Trump-nominated U.S. Supreme Court Justice Neil Gorsuch joined with the court’s four liberal justices in a case involving the sovereignty of Native American land in Oklahoma. He and the four liberal justices formed a majority in favor of his side, which ruled that the Native American land in Oklahoma needed to have its sovereignty respected to the point of excluding Native American individuals from ordinary state criminal proceedings. Instead, Native Americans would be subject to federal jurisdiction. As reporter Steven Mazie explained, the case “asked whether Indians committing crimes on Creek land could be subject to state criminal law,” and the answer — according to a ruling that Gorsuch wrote — is no.

In his ruling, Gorsuch wrote:

‘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.’

The New York Times called the ruling “potentially one of the most consequential legal victories for Native Americans in decades,” noting that a full 1.8 million people live in what the Supreme Court has now described as “Indian Country.” The land in question was, as Gorsuch references, originally designated as a reservation for Native Americans, and he and the court’s four liberal justices determined that the reservation status did not automatically disappear simply because of the history of development and expansion in the area.

Principal Chief David Hill of the Muscogee tribe commented:

‘This is a historic day. This is amazing. It’s never too late to make things right.’

Chief Justice John Roberts, who has sometimes broken with the conservative side of the court, stuck with conservative justices this time. In the dissenting opinion that he wrote, he insisted that the ruling could create undue chaos in the Oklahoma criminal justice system, since Native Americans would be excluded from criminal prosecutions by the state and instead would be subject to federal criminal proceedings. However, as the Times notes, Muscogee leaders have indicated that they “would work with state and federal law-enforcement authorities to coordinate public safety within the reservation.” Although Roberts suggested that “decades of past convictions could well be thrown out” on account of the newly outlined legal status for Native Americans in the area, it’s unclear that any cases will actually be thrown out.

This case is not the first occasion on which Gorsuch has broken with the court’s conservative justices. He also did so when the court handled a case over the question of whether LGBTQ individuals were protected from discrimination in the workplace over their sexual orientation. Gorsuch helped form a 6-3 majority, and he wrote the ruling outlining the protections from discrimination that LGBTQ individuals are entitled to. Besides the court’s four liberal justices, Justice Roberts also joined the majority.

There have been other defections. In another case decided during this same Supreme Court term, Chief Justice Roberts joined the court’s four liberals in striking down attempted abortion restrictions in Louisiana, a ruling which immediately sparked plenty of ire from Republicans.