Seventh Circuit Recognizes that McGirt v. Oklahoma Departed From Longstanding Precedent

Justice Gorsuch's majority opinion may have promoted textualism, but it did not recognize a departure from Stare Decisis.

|The Volokh Conspiracy |

In The Atlantic, I criticized Justice Gorsuch's two most prominent majority opinions of the term: Bostock and McGirt. I described his approach as half-way textualism. In Bostock, he purported to be a textualist, but was actually following non-textualist precedent. In McGirt, he purported to follow a non-textualist precedent, but was actually being a textualist.

In the past, the Court looked to many factors to determine whether Congress had disestablished an Indian reservation. But McGirt required far more conclusive, textualist evidence. Mike Dorf describes the test as a "clear statement rule." I think that label works. However, Justice Gorsuch insisted he was simply following precedent. That insistence was no doubt appreciated by the four progressives who joined him. They have long treated stare decisis as the primary force to hold back future conservative rulings. In my view, the progressive quartet that joined the Obergefell majority are permanently estopped from talking about stare decisis. At least in McGirt, they could pretend they were standing by precedent.

Now, the lower courts have begun to interpret McGirt. And they have stated the obvious: it altered precedent.

Consider Judge Hamilton's opinion in Oneida Nation v. Village of Hobart. He wrote:

The Reservation was created by treaty, and it can be diminished or disestablished only by Congress. Congress has not done either of those things. The governing legal framework—at least when the issue was decided in the district court and when we heard oral argument—was clear. Under Solem v. Bartlett, 465 U.S. 463 (1984), we look—from most important factor to least—to statutory text, the circumstances surrounding a statute's passage, and subsequent events for evidence of a "clear congressional purpose to diminish the reservation." Id. at 476. After this case was argued, the Supreme Court decided McGirt v. Oklahoma, 140 S. Ct. 2452 (2020). We read McGirt as adjusting the Solem framework to place a greater focus on statutory text, making it even more difficult to establish the requisite congressional intent to disestablish or diminish a reservation. The Oneida Nation prevails under both the Solem framework and the adjustments made in McGirt.

"Adjusted" is code for "overruled."

Judge Hamilton lists other ways in which McGirt altered precedent:

Last, we consider the later demographic history and the United States' later treatment of affected areas, which have "some evidentiary value" and can "reinforce" a conclusion suggested by the text. Neither this court nor the Supreme Court has ever found the requisite congressional intent to diminish based on only this last factor.4

FN4:We read McGirt as adjusting this framework by establishing statutory ambiguity as a threshold for any consideration of context and later history.

And McGirt created tension with circuit precedent:

Our reasoning in Stockbridge–Munsee seems to be in tension with McGirt. We concluded that the key act of Congress "included none of the hallmark language suggesting that Congress intended to disestablish the reservation." We did not identify an ambiguity in the text before concluding that "the circumstances surrounding the act show that Congress wanted to extinguish what remained of the reservation when it passed the act." Id. This approach is consistent with Solem but is in tension with the adjustments to the Solem framework made by McGirt.

Justice Gorsuch should acknowledge where he is deviating from precedent. It serves no purpose to pretend these cases were textualist all along.

Update: Judge Hamilton wrote the majority opinion, not–as I wrote–Chief Judge Sykes. I've corrected that error.

NEXT: Another Rogue Cop Just Got Qualified Immunity. The Judge Who Gave It to Him Isn't Happy About It.

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  1. Justice Gorsuch should acknowledge where he is deviating from precedent. It serves no purpose to pretend these cases were textualist all along.

    Wait, now it’s “pretending” to be textualist if a case deviates from precedent? What happy horseshit is this?

    1. It’s not very clearly expressed, but I think Prof. Blackman is trying to say:

      1. The prior precedent in this area of the law was non-textualist;
      2. Gorsuch’s opinion in McGirt broke with the doctrine established by that precedent and replaced it with a textualist approach; but
      3. Rather than saying so, Gorsuch pretended that his conclusion was consistent with those prior precedents; which
      4. Means that Gorsuch had to falsely characterize those earlier cases as grounded in textualism even though they were not.

      I don’t really have enough of a sense of this body of law to evaluate whether these claims are true or not, although I have trouble seeing how the quoted Seventh Circuit opinion provides much support.

      1. I don’t really have enough of a sense of this body of law to evaluate whether these claims are true or not, although I have trouble seeing how the quoted Seventh Circuit opinion provides much support.

        Well, in that case I demand that Justice Roberts resign immediately.

    2. I can’t wait to see what the next thrilling installment of Blackman whining about Gorsuch and Roberts has in store.

      1. To be fair, conservatives have been “whining” (I would say offering legit criticism) about Roberts for near a decade now, so it’s nothing new ‘cept to throw the new guy Gorsuch in there with him for pretty much the same reasons. Two for the price of one!

  2. You have completely conflated textualism with following precedent. If the precedent doesn’t follow the text, then the textualist thing to do would be to abandon the precedent.

    From your own quote of Sykes’ opinion in Oneida Nation v. Village of Hobart:

    “We read McGirt as adjusting the Solem framework to place a greater focus on statutory text”

    Of course you emphasized the “adjusting” part of the sentence, but you might as well emphasize the “greater focus on statutory text” part. Apparently Sykes disagrees with you and thinks that the McGirt opinion was quite textualist.

    1. That Sykes line was not handled well . . . or forthrightly. Prof. Blackman seems to be flailing.

      I am beginning to sense he genuinely believed conservatives had turned or were turning the cultural and legal tides in America and possessed a chance to remaining competitive in the culture war. Recent recognition of reality seems to have precipitated outrage and disillusionment. After a period of ranting and flailing, he likely will become another disaffected clinger, ranting about illusory ‘good old days.’

    2. Right, it looks like Solem gave a list of criteria to consider in order of importance, with statutory text being first, and then McGirt says, statutory text is the most important factor and if a decision isn’t supported by the statutory text, the other latter criteria don’t need to be addressed.

      It does completely remove whatever the wiggle room was with circumstances surrounding, subsequent events, demographics and treatment of affected areas. However the existence of that wiggle room on the level of a treaty is maybe inappropriate to begin with; the history of most of the Indian nation treaties is a history of demographic change, largely non-Native cities cropping up (Tulsa!) and a general pressure to cede the territory in whatever way possible. If they had decided the other factors were more important, it could have wreaked havoc with water law.

      Isn’t SCOTUS supposed to clean out iffy precedents? I thought that’s one of the things it’s for.

  3. Gorsuch uses textualism to overrule precedent in McGirt
    Josh Blackmun: Bad

    Gorsuch doesn’t overrule precedent and uses it in his textualist analysis of Bostok
    Josh Blackmun: Bad

    It almost seems like his treatment of precedent isn’t really what you are concerned about.

    1. Indeed. This “half-way textualism” argument that Blackman is trying to make is completely internally inconsistent and contradictory to the point that I don’t even understand the argument that he’s trying to make at this point. I guess it boils down to he doesn’t like the outcome in both cases, so it seems like “half-way textualism” is basically the same as “no true textualism”. It would be interesting to see Barnett come along at some point and try to clarify what the argument is supposed to be.

  4. Blackman is so regularly bodied here in a bipartisan way unequaled by any other Conspirator, even back in the days of Kontorovich and Lindgren, who each had their defenders.

    I think it’s his legal analysis being legit slapdash. Quantity may not have a quality all it’s own in this arena.

    1. …legit slapdash….Quantity may not have a quality all it’s own…

      Yes. This.

    2. I wonder how accurately it reflects the analysis of his mentor, who nowadays seems to content to own libs on Twitter while Josh take his lumps on the mother ship.

    3. Stewart A. Baker has always come in for a lot of criticism at the Conspiracy, I think.

  5. It’s funny to read opinions like this one in which “textualism” (or its cousin, originalism) is treated like an objective prescription, instead of biased window dressing.

    1. I don’t know about you, but I prefer my judicial despotism when it can be taken pure, and without the base alloy of hypocrisy.

  6. We get it, you didn’t like the result.

  7. I think it was a mistake for the Oneida Nation opinion to have separate sections under pre-McGirt and post-McGirt reasoning. I speculate the opinion was already drafted when McGirt came out, and rather than rewriting it they just tacked a McGirt analysis on. This is a mistake because a pre-McGirt analysis is advisory, and the Supreme Coirt should not give advisory opinions.

    It would have been perfectly appropriate to mention that McGirt clarified (or changed) the law on the issue at hand before proceeding to a McGirt analysis. And it was reasonable to say that McGirt, which was decided after all proceedings had occurred, completely controlled this case, disposed of the Village’s arguments, and made the outcome decisively clear. But making an extensive pre-McGirt analysis and then tacking on a McGirt analysis at the very end was not appropriate.

    1. Sorry, and a federal court should not give advisory opinions.

  8. Oli think that McGirt could be read as clarifyimg precedent rather than completely turn it. The 3 factors remain, but become weighted in a textualist direction. You only consider the other factors if the text itself is ambiguous, the other factors can’t outweigh clear text. I think whether it constitutes a complete overturn of precedent is more arguable than Professor Blackman’s post suggests.

    And I tend to agree with other commentators who suggest that the sheer quantity of Professor Blackman’s posts sometimes reduce their quality and give them an off-the-cuff feel. If Professor Blackman were to post less, his posts might be better quality, more attentive to nuance and counterarguments, and have more influence.

    I realize this is a blog, not a journal. But even in a blog, it might be useful to recognize when ones argument is controversial and others have disagreed. A number of Professor Blackman’s arguments have tended to fit things into an ideological predisposition box that tends to be a product of reacting based on first impressions, impressions that sometimes lessen or dissipate when one takes time to look at things carefully and think things through before making an argument.

    1. In particular, the 7th Circuit’s view that this case would have reached the same result prior to McGirt is some evidence that McGirt is not as radical a change as Professor Blackman is suggesting. McGirt controls precisely because It has issues, on a much smaller scale, that are somewhat similar to those in McGirt.

    2. And I tend to agree with other commentators who suggest that the sheer quantity of Professor Blackman’s posts sometimes reduce their quality and give them an off-the-cuff feel. If Professor Blackman were to post less, his posts might be better quality, more attentive to nuance and counterarguments, and have more influence.

      I’m still waiting for him to explain his claim that the House lost Mazars.

  9. Bostok wasn’t textualism folks, it was deconstructionism, which uses the same tools of literary exposition as textualism. Bostok was postmodernsim wearing an originalist mask. Jacques Derrida would be proud of Gorsuch.

    1. You never got around to explaining how the decision is not textualism.

    2. Postmodernism is when you don’t like something, and the more you don’t like it, the more postmodern it is.

      1. There was a hurricane round these parts this week, and we lost power for nine hours. Postmodernly.

    3. In America, textualism emerged as a reaction to the the excesses of the Warren Court, where penumbras and emanations were used to justify policy preferences of the clear text of the law or constitution. Textualism allowed conservative jurists to focus not on the morality of an issue, for indeed, some of those judicial activist decisions were popular enough. However, when “there is nothing outside the text” as Derrida famously said, with no reference points, then the text is not anchored to actual meanings that the text had at the time of its adoption. Thus when there is nothing outside the text, “sex” means what “sex” means in 2020, not what it meant in 1964.

      1. Except Gorsuch looked at the meaning of the language as written at the time.

        1. But why bother to read the decision when you know you don’t like the outcome?

        2. Except no he didn’t.

          1. What were the dictionaries he quoted from for then?

            1. Two problems here. As Alito says in his dissent, determined searching has not found a single dictionary from that time that defined “sex” to mean sexual orientation, gender identity, or
              “transgender status.” Thus, the concept of discrimination because of “sex” is different from discrimination because of “sexual orientation” or “gender identity.” Gorsuch did what a postmodernist does, which is make the word “sex” mean what he wants it to mean by unmooring it from its traditional meaning.

              The second is that it was the meaning of the word “sex” as per the actual law, which was entirely clear at the time. Nobody in 1964 voting for act would have expected the 2020 Bostok outcome, and Congress explicitly rejected changing it towards Bostok’s actual outcome. Again, it’s textual analysis unmoored from context.

              It was a slight of hand of a masterful short, but alas, because of the end result we see through it like pantyhose. Outcome is still the same though.

              1. You don’t even need to get past the syllabus in the decision to see that these arguments don’t actually confront the analysis in the decision: “The parties concede that the term “sex” in 1964 referred to the biological distinctions between male and female.” No one is arguing otherwise.

    4. bah, I mean policy preferences *outside* the clear text of the law or constitution.

  10. “In my view, the progressive quartet that joined the Obergefell majority are permanently estopped from talking about stare decisis.”

    So are the five conservative justices that joined the Janus v. AFSCME majority similarly estopped from appealing to stare decisis when it suits them? Or are you a petulant hack who should be relegated to writing for Breitbart, if at all?

    1. That is a fair critique that fans of a living constitution throw out there when an unconstitutional precedent gets undone (as it rarely does). I’m not sure it has the sting of hypocrisy that you think it does though.

  11. “In Bostock, he purported to be a textualist, but was actually following non-textualist precedent. In McGirt, he purported to follow a non-textualist precedent, but was actually being a textualist.”

    This sounds like a religious argument.

    1. “”Adjusted” is code for “overruled.”

      This is why people on all sides regularly speak of Planned Parenthood v. Casey as having “overruled” Roe v. Wade, I reckon? Considerably less adjustment in McGirt than in Casey, especially considering that the text was already the primary factor in Solem.

      Doesn’t seem much of a stretch to say that “there was confusing both among lower courts as well as the State as to how to apply the balancing test, incorrectly ascribing more weight to the less important factors even when the primary factor was clear.”

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