SCOTUS Good and Bad

The last couple of weeks brought good news and bad news from the Supreme Court. In an example of the old adage that “even a stopped clock is right twice a day”, Justice Neil Gorsuch agreed with the four reasonable justices in McGirt v. Oklahoma and declared that yes, treaties between Native American nations and the United States government are indeed still in force, therefore in the eastern half of Oklahoma remains a reservation for the purpose of a federal statute that gives the federal government exclusive jurisdiction to try certain major crimes committed by “any Indian” in “the Indian country.” 

Here’s the critique of the opposition view from the end of the decision: “The federal government promised the Creek a reservation in perpetuity. Over time, Congress has diminished that reservation. It has sometimes restricted and other times expanded the Tribe’s authority. But Congress has never withdrawn the promised reservation. As a result, many of the arguments before us today follow a sadly familiar pattern. 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. 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.”

In Trump v. Vance, Chief Justice John Roberts repeatedly referenced John Marshall, the first Chief Justice of the Supreme Court, who wrote an opinion in a case also involving presidential papers and agreed that the President is not above the law and is therefore subject to subpoena of documents. “ Article II and the supremacy clause of the Constitution do not categorically preclude, or require a heightened standard for, the issuance of a state criminal subpoena to a sitting president.” Most of the justices agreed with only Thomas and Alito dissenting. This ruling enables Manhattan District Attorney Cyrus Vance to go forward with the investigation of the president’s financial misdeeds under New York state law by allowing the subpoena of documents from various financial institutions to proceed.

In Espinoza v. Montana Department of Revenue the court held that the application of the Montana Constitution’s “no-aid” provision to a state program providing tuition assistance to parents who send their children to private schools discriminated against religious schools and the families whose children attend or hope to attend them in violation of the free exercise clause. In effect the five conservative justices said that your tax money must support religious schools. If you send your child to a local Lutheran or Catholic school you might find this decision appealing but if you aren’t religious and don’t want your taxes supporting such schools you’re out of luck. Evangelicals and others who disparage Islam might want to think twice about this decision also because it also means that their tax dollars must also fund Muslim schools which including Madrassahs. This court has punched a big hole in the wall of separation between church and state, I can only hope that this decision is rescinded when a more reasonable group of justices sits in the majority.

There were a number of other important decisions in the last few weeks and so next week I’ll review a few more decisions from this term.

Published in the Seguin Gazette - July 15, 2020