The Volokh Conspiracy

Mostly law professors | Sometimes contrarian | Often libertarian | Always independent

SCOTUS Grants Cert To Narrow, But Not Overrule McGirt

Efforts to lobby ACB to reverse McGirt have failed.


In August, Oklahoma asked Justice Barrett to overrule McGirt. Well, not exactly. To be precise, the petition asked the Court to reverse the 2020 precedent. But in reality, ACB's vote would have made the 5-4 decision come out the other way.

Now, five months later, the Court declined that request. Instead, the Court granted cert on a question that could limit the scope of McGirt. From today's orders in Oklahoma v. Castro-Huerta:

The petition for a writ of certiorari is granted limited to Question 1 presented by the petition. The case will be set for argument in the April 2022 argument session. Petitioner's brief on the merits is to be filed on or before Monday, February 28, 2022. Respondent's brief on the merits is to be filed on or before Monday, March 28, 2022. The reply brief is to be filed in accordance with Rule 25.3.

Here were the two questions presented in the petition:

1. Whether a State has authority to prosecute non-Indians who commit crimes against Indians in Indian country.

2. Whether McGirt v. Oklahoma, 140 S. Ct. 2452 (2020), should be overruled.

Question #2 is out. But Question #1 is in.

If I had to predict, the Court will say that McGirt is limited to cases where there is both an Indian defendant and an Indian victim. That should narrow the destabilizing effects of McGirt. Justice Gorsuch may even get behind that decision. But the Justices will not have to labor over yet another stare decisis fight this term. Once again, the Court limits questions presented as a bulwark of moderation.

I think the past few days have taught me a lesson about the Supreme Court. Perhaps Oklahoma made a mistake by asking the Court to overrule McGirt. Maybe it would have been more effective to merely suggest, in one form or another, to reverse the precedent. We all know Chief Justice Roberts prefers the subtle art of persuasion. Or so I heard on the radio.

Stay tuned for the April oral argument.