The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
During the October 2019 term, Justice Gorsuch laid two eggs: Bostock and McGirt. I criticized both decisions at some length. For the most part, Bostock has not resulted in any radical changes in policy. Things have been surprisingly smooth. But McGirt has been a policy disaster. Much of Eastern Oklahoma has been thrown into legal jeopardy. Countless convictions have been overturned. And the status of tax, energy, and environmental laws are in flux. We know all too well that Justice Gorsuch is utterly unconcerned with the policy implications of his decisions. When he gets the law right, that fortitude is admirable. When he gets the law wrong, we are all boofed.
The simplest path for Oklahoma is overruling McGirt. And Oklahoma has made that request in a pending cert petition, with Kannon Shanmugam as counsel of record.
This case also presents the question whether McGirt should be overruled. McGirt was wrongly decided for the reasons stated in the chief justice's dissent, and its disruptive effects in Oklahoma are unprecedented. While the Court believed that compromise or congressional action could limit the disruption from its decision, it is now clear that neither is forthcoming. The tribes do not agree among themselves, much less with the state, on the proper path forward, and Congress is unlikely to adopt any proposal not supported by all of the parties involved. Only the Court can remedy the problems it has created, and this case provides it with an opportunity to do so before the damage becomes irreversible.
This petition may as well include Amy Coney Barret's face on the cover. McGirt split 5-4. RBG, who was in the McGirt majority, is no longer on the Court. If ACB votes the other way, Oklahoma will return to the pre-Gorsuch status quo. I think even the Chief Justice would be willing to depart from stare decisis here. There are no reliance interests in a state of legal entropy. McGirt has been in effect for one year, and the decision has radically destabilized the law. If ever there was a candidate for reversal, it is McGirt.
Developments since McGirt have proven the decision fundamentally unworkable. Any reliance interests that have developed in the short time since McGirt pale in comparison to the century of reliance interests that McGirt upset. The case was decided by "the narrowest of margins," over a "spirited dissent() challenging the basic underpinnings" of the majority opinion. Payne v. Tennessee (1991). And the recent nature of the decision entitles it to less stare decisis weight. To stop the damage and save the people of Oklahoma from years of hardship to come, the Court should consider overruling McGirt in this case. The stakes are simply too high to leave that option off the table. For that reason, the Court should grant review on the third question presented, in addition to the questions regarding procedural and equitable bars to post conviction relief under McGirt and the state's authority to prosecute non-Indians who commit crimes against Indians in Indian country. It is hard to imagine a case in which this Court's review is more desperately needed. The state of Oklahoma respectfully requests that the Court grant certiorari and set this case for oral argument as soon as possible.
Decided in June 2020 and overruled in June 2022? This switcheroo might be the quickest SCOTUS self-reversal since Knox v. Lee (1871) overruled Hepburn v. Griswold (1870). There too, the constitutionality of paper money flipped after new Justices were appointed.