The usually solid editors over at The Wall Street Journal had a piece last Friday regarding, in their terms, a bizarre loophole for Oklahoma criminals.
It seems that Supreme Court Justice Neil Gorsuch wrote a majority opinion in McGirt v Oklahoma that held that since the Federal government—Congress—has never actually dissolved the nation’s treaty with the Creek Nation, Oklahoma’s
authority to prosecute crimes involving Native American perpetrators and victims has vanished in nearly half of Oklahoma.
Because that’s the expanse of the Creek Nation’s reservation under that treaty.
Their editorial then listed a number of cases that fell out of McGirt that allowed a number of negligent persons and outright criminals get away with their crimes because the events involved Native Americans over whom the State has no jurisdiction to prosecute or no standing to protect.
The editors’ overwrought headline, How to Get Away With Manslaughter, then was bookended with a cynically emotional finale:
The Supreme Court should look these cases in the face. Is this justice, Justice Gorsuch?
The Editors’ ire is justified, but it’s aimed in the wrong direction.
All any Federal judge, Justices included, can do under our Constitution (vis., Art I, Sect 1) and their oaths of office, is to apply the law, including our supreme Law of the Land, as they are written. They cannot, in particular, adjust either, nor can they manufacture from the bench laws that plug loopholes in laws.
The loophole the Editors decry here, as any loophole in any law, can only be plugged statutorily, and only Congress can make law that does so.
The items listed, and many others to come, indeed aggregate into a vast and serious failure to perform. However, the failure is Congress’, and it’s on Congress to correct it. Judges cannot, and especially, Justices cannot.