Tribes’ Victory in Oklahoma at Risk in Bold Request to the Supreme Court

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Last year, the court ruled 5 to 4 that much of the state is an Indian reservation. Oklahoma wants a do-over, testing the court’s respect for the power of precedent.

The Supreme Court in Washington.
Credit...Stefani Reynolds for The New York Times

Adam Liptak

Aug. 16, 2021, 5:00 a.m. ET

WASHINGTON — The precedent, which ruled that much of eastern Oklahoma falls within an Indian reservation, is just over a year old. A couple of weeks ago, Oklahoma asked the Supreme Court to overrule it.

Two things had happened in between. First, as state officials and the dissenting justices had predicted it would, the ruling disrupted Oklahoma’s criminal justice system.

Second, Justice Ruth Bader Ginsburg, who was in the majority in the 5-to-4 decision, died and was replaced by Justice Amy Coney Barrett.

Oklahoma’s bold request, like the challenge to Roe v. Wade and other abortion precedents that the court is set to hear in a case this fall, will test the court’s commitment to stare decisis, which is legal shorthand for respect for precedent and Latin for “to stand by things decided.”

The court has articulated standards for when it should overrule its decisions — in precedents about precedents — but no one thinks they are quite satisfactory.

In a concurring opinion last year, for instance, Justice Brett M. Kavanaugh counted seven factors that the court has considered in deciding whether to overrule constitutional precedents but said he was unable to discern “any consistent methodology or road map for how to analyze all of the factors taken together.”

Occasionally, driven by cynicism or frustration or candor, dissenting justices have said that the most important factor is the most obvious one: whether the membership of the court has changed.

Justice Thurgood Marshall took this view in a 1991 dissent issued just hours before he announced his retirement. He accused the majority of overruling two recent 5-to-4 decisions on death-penalty sentencing procedures based on nothing more than the arrival of new justices.

“Power, not reason, is the new currency of this court’s decision making,” Justice Marshall wrote in Payne v. Tennessee, adding that nothing else had changed since the court issued the earlier decisions, in 1987 and 1989. “Only the personnel of this court did.”

Justice Clarence Thomas, who replaced Justice Marshall and would go on to become the member of the court most skeptical of stare decisis, addressed his predecessor’s statement at his confirmation hearings, calling it “a very important admonition.”

“You cannot simply, because you have the votes, begin to change rules, to change precedent,” he said. “That is not a basis for doing it.”

If raw power is not the standard, what is? In his concurring opinion, Justice Kavanaugh proposed three basic tests: whether the challenged precedent was “grievously or egregiously wrong,” whether it had produced negative consequences for the law or the world and whether people had come to rely on it.

But those tests, too, leave plenty of room for argument, as the Oklahoma case demonstrates. The challenged precedent, McGirt v. Oklahoma, barred prosecutions of Native Americans by the state authorities on what the court affirmed was Indian land, saying they must instead face justice in federal or tribal courts.

The McGirt decision commanded five votes just a year ago and so may be hard to call egregiously wrong.

On the other hand, it has undeniably placed crushing burdens on the state’s criminal justice system, by some accounts plunging it into chaos.

At least some of that disruption, though, was unsurprising. In his dissent in the McGirt case last year, Chief Justice John G. Roberts Jr. warned that “the state’s ability to prosecute serious crimes will be hobbled and decades of past convictions could well be thrown out.”

The third factor, reliance, probably counts in the state’s favor. In 2009, in overruling a 1986 precedent, Justice Antonin Scalia wrote that “the opinion is only two decades old, and eliminating it would not upset expectations.”

A fourth factor cuts in the opposite direction: Congress remains free to address the matter. The Supreme Court has said that more respect for precedent is required when a statute rather than the Constitution is at issue, though it is not clear that this is true in practice.

The legal landscape in Oklahoma is shifting, too. On Thursday, the state’s highest court for criminal cases ruled that it would not apply the McGirt decision retroactively to cases in which defendants had exhausted their direct appeals. That dampened the decision’s impact and could affect the new challenge.

But the basic issue is not going away. Whether in the pending request for Supreme Court review, Oklahoma v. Bosse, or a later one, the court seems poised to reconsider one of the biggest victories for Native Americans in decades in the wake of the arrival of a new justice.

Judging by her academic writing, Justice Barrett is skeptical of the power of precedent, at least in constitutional cases.

“I tend to agree with those who say that a justice’s duty is to the Constitution and that it is thus more legitimate for her to enforce her best understanding of the Constitution rather than a precedent she thinks clearly in conflict with it,” she wrote in 2013 in the Texas Law Review.

Indeed, she wrote that there are consequences when the membership of the court changes. “The slow rate at which seats turn over itself encourages continuity in case law,” she wrote. “Justices do change their minds, but overruling is more likely when fresh eyes see a case.”

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