WASHINGTON — The precedent that much of eastern Oklahoma falls within an Indian reservation is just over a year old. A few weeks ago, Oklahoma asked the Supreme Court to dismiss it.
In the meantime, two things had happened. First, as state officials and the dissenting judges had predicted, the ruling disrupted Oklahoma’s criminal justice system.
Second, Judge Ruth Bader Ginsburg, who was in the majority in the 5-to-4 decision, died and was replaced by Judge Amy Coney Barrett.
Oklahoma’s bold request, like the challenge to Roe v. Wade and other abortion precedents that the court will hear in a case this fall, will test the court’s commitment to making the decision, which is a legal shorthand for respecting precedent. and Latin for “stand by the things that are decided.”
The court has set standards for when to override its decisions — in precedents over precedents — but no one thinks they’re quite satisfactory.
For example, last year Judge Brett M. Kavanaugh counted seven factors that the court considered in deciding to ignore constitutional precedents, but said he could not discern a consistent methodology or roadmap for analyzing all the factors together.”
At times, driven by cynicism or frustration or candor, dissident judges have said the most important factor is the most obvious: whether the court composition has changed.
Judge Thurgood Marshall took this position in a 1991 dissent just hours before announcing his retirement. He accused the majority of setting aside two recent 5-on-4 decisions on death penalty proceedings, based on nothing more than the arrival of new judges.
“Power, not reason, is the new currency of this court’s decision-making,” wrote Justice Marshall in Payne v. Tennessee, adding that nothing else had changed since the court made its previous decisions, in 1987 and 1989.” Only the staff of this court did.”
Judge Clarence Thomas, who replaced Judge Marshall and would later become the court member most skeptical of stare decisis, addressed his predecessor’s statement during his confirmation hearings, calling it “a very important admonition.”
“You can’t simply, because you have the votes, start to change the rules, change the precedent,” he said. “That’s no basis for doing it.”
If brute force isn’t the standard, then what is? In his unanimous opinion, Judge Kavanaugh proposed three basic tests: whether the precedent challenged was “seriously or blatantly wrong,” whether it had negatively impacted the law or the world, and whether people had come to rely on it.
But those tests also leave a lot of room for discussion, as the Oklahoma case shows. The challenged precedent, McGirt v. Oklahoma, banned prosecution of Native Americans by state authorities over what the court affirmed was Indian land, and said they should instead appear in federal or tribal courts.
The McGirt decision got five votes just a year ago, so it might be hard to call flagrantly wrong.
On the other hand, it has undeniably placed a crushing burden on the state’s criminal justice system, by some reports plunging it into chaos.
At least some of that disruption wasn’t surprising. In his dissent in the McGirt case last year, Chief Justice John G. Roberts Jr. that “the state’s ability to prosecute serious crimes will be hampered and decades of past convictions could be thrown away.”
The third factor, dependency, is likely to favor the state. In 2009, Judge Antonin Scalia, setting aside a 1986 precedent, wrote that “the opinion is only two decades old and eliminating it would not disrupt expectations.”
A fourth factor cuts in the opposite direction: Congress remains free to address the issue. The Supreme Court has said that greater respect for precedents is required when a law rather than the Constitution is at stake, although it is not clear whether this is true in practice.
The legal landscape in Oklahoma is also changing. On Thursday, the state’s highest criminal court ruled that it would not retroactively apply the McGirt decision to cases where defendants had exhausted their direct appeals. That dampened the impact of the decision and could influence the new challenge.
But the fundamental problem does not go away. Whether it’s the pending Supreme Court review request, Oklahoma v. Bosse, or a later one, the court seems poised to reconsider one of the greatest victories for Native Americans in decades in the wake of the arrival of a new judge.
Judging by her academic writings, Justice Barrett is skeptical of the power of precedent, at least in constitutional matters.
“I tend to agree with those who say that a judge’s duty is to the Constitution and thus it is more legitimate for her to enforce her best understanding of the Constitution rather than set a precedent that she believes is clear. conflicts with it,” she wrote in 2013 in the Texas Law Review.
In fact, she wrote that there are consequences if the composition of the court changes. “The slow rate at which seats are falling promotes continuity in the administration of justice,” she wrote. “Judges do change their minds, but overruling is more likely when fresh eyes see a case.”