Herrera V. Wyoming: A Cautionary Consider Amongst Careless Repudiation

Daniel B. Rice too Jack Boeglin

The constabulary of repudiating precedent is hopelessly muddled.  The Supreme Court oftentimes only overrules decisions whose reasoning it chooses to disavow.  But it sometimes stops just brusk of doing so—repudiating the regulation underlying a example without explicitly overruling the example itself.  When those enfeebled decisions are invoked inward later on litigation, how should the Court sympathise their balance force?  Have they been “effectively” overruled, overruled sub silentio, or peradventure limited to their facts?  And is at that topographic point whatsoever divergence betwixt these formulations?

The absence of a shared analytical framework for answering these questions was on total display at concluding week’s argument inward Herrera v. Wyoming.  The petitioner inward Herrera, a fellow member of the Crow Tribe, contended that Wyoming’s admission to the Union did non extinguish the Tribe’s correct to hunt on unoccupied lands inside the state, a correct previously guaranteed yesteryear treaty.  In response, the State of Wyoming argued—as it had successfully below—that the dispute was squarely governed yesteryear the Court’s conclusion inward Ward v. Race Horse (1896).

The Justices labored to sympathise the lingering import of Race Horse, which held that a tribe’s treaty-derived correct to hunt on unoccupied lands terminates when the relevant territory is admitted to the Union every bit a state.  Race Horse, however, ran into problem most correct out of the gate.  As the Court noted inward Minnesota v. Mille Lacs Band of Chippewa Indians (1999), Race Horse “rested on a imitation premise” that had been “consistently rejected” inward later on cases dating dorsum nearly a century.  The Justices underscored the magnitude of this doctrinal shift during oral declaration inward Herrera: “I don’t meet how yous tin acquire to a greater extent than opposite,” remarked Justice Breyer; Justice Kagan agreed, claiming that “all the reasoning [of Race Horse] is repudiated.” 

But the Court has never expressly overruled Race Horse.  Even inward Mille Lacs, which thoroughly too systematically discredited that decision’s rationale, the Court failed to verbalise the magic words necessary to overrule the case, instead leaving its fate for roughly other day.  Justice Breyer offered a guarded defence of this stepwise approach:

Possibly they should guide keep added . . . the words “Race Horse is overruled,” but the Court didn’t.  I tin sympathise that. . . . There are a lot of things to do every day, too yous guide keep to write your opinions too yous outset putting inward a discussion similar ‘overruled’ too roughly of your colleagues mightiness think: Don’t do it, yous don’t know what you’re getting, et cetera.  All nosotros guide keep to determine for this example is that Race Horse doesn’t bind us, okay?

Alas, the minute of reckoning has arrived, amongst the many questions left unresolved yesteryear Mille Lacs.  Which example governs Herrera—Race Horse or Mille Lacs?  If Race Horse has non been overruled, but instead limited to its facts, what are those “facts”?  And do the circumstances of Herrera fall inside that limited exception?  The facts of Race Horse too Herrera are strikingly similar, though non identical; they involve dissimilar tribes, dissimilar lands, too dissimilar treaties.  But the relevant treaty linguistic communication inward the 2 cases is exactly the same. 

Seizing on that similarity, iii Justices—led yesteryear Justice Kavanaugh—expressed skepticism that the Court could depict whatsoever sensible distinctions betwixt the 2 cases; for those Justices, ruling inward the Tribe’s favor would probable require overruling Race Horse.  And indeed, both Herrera too the United States (as amicus) guide keep urged the Court to do just that: pose Race Horse out to pasture i time too for all.

The Court is straightaway left with iii options (assuming that no ancillary issues derail a merits determination).  It tin do what its precedents guide keep long prefigured—overrule Race Horse too clarify that a state’s admission to the Union never impliedly terminates tribal treaty rights.  It tin confine Race Horse to its precise facts, for reasons that no Justice expressed at argument, too determine whether Herrera falls inside that narrow factual exception.  Or it tin overstep away along punting on Race Horse’s fate, identifying fiddling factual distinctions betwixt it too Herrera, thereby leaving Race Horse most exclusively stripped of precedential content, yet “somehow technically alive.” 

It didn’t guide keep to live this way.  The Herrera conundrum resulted from a regrettable inattention to i of the most of import features of stare decisis: how to discard unwanted precedent.  In a forthcoming article inward the Virginia Law Review entitled “Confining Cases to Their Facts,” nosotros aim to furnish the analytical rigor missing from courts’ handling of disfavored precedents.  We outset yesteryear highlighting the distinction that featured too hence prominently inward Herrera—that betwixt the repudiation of a legal regulation too the overruling of specific decisions decided inward reliance upon it.

When a courtroom repudiates a principle, it disavows the reasoning of an before example too indicates that it is no longer to live treated every bit skillful constabulary inward novel contexts.  Doing too hence leaves a repudiating courtroom with i of iii alternatives:

(1)   Explicitly overrule decisions decided inward reliance on the repudiated principle.

(2)   Explicitly save the holdings of cases that apply the repudiated principle.  This coupling of repudiation too preservation renders an before conclusion “confined to its facts.”

(3)   Postpone the query of whether to overrule or confine imperiled decisions until required to do too hence yesteryear a example whose facts cannot live distinguished.  (This is, regrettably, how Mille Lac dealt with Race Horse.)

Option 3 should never live employed, Justice Breyer’s tepid endorsement notwithstanding.  Cases left ravaged yesteryear the repudiation of a regulation must eventually live either overruled or confined.  And every bit nosotros educate at length inward our article, only the protection of reliance interests tin e'er plausibly justify a conclusion to confine.  If no compelling, articulable reliance interests are at stake, the repudiation of a regulation should trigger an immediate overruling.  It is, frankly, irresponsible to inflict lasting dubiousness on the legal arrangement when confining volition never live a live option.  To borrow Justice Breyer’s phrasing, absent weighty reliance interests, yous do “know what you’re getting” when repudiating a principle—an all-but-guaranteed overruling at roughly dot inward the future.

We promise that the Court volition larn from its latest troubles too utilisation Herrera every bit an chance to underscore the centrality of repudiation to our arrangement of stare decisis.  It is non the eventual selection betwixt overruling too confining that unmakes a precedent, but the prior deed of repudiation.  This shift inward focus would non only relieve courts from awkward predicaments; it would every bit good reveal the unsoundness of tests that accord talismanic significance to the presence of an “overruling.”  Courts guide keep routinely evaded the formal requirements of stare decisis—e.g., the Supreme Court’s “special justification” doctrine too the federal courts of appeals’ en banc rule—by only confining cases to their facts, rather than overruling them outright.  These sorts of workarounds should non live tolerated moving forward.

By focusing on the consequences of repudiation at the minute of repudiation, the Court tin forbid pregnant mischief too needless confusion, patch at the same fourth dimension modeling responsible precedential practices for the federal too nation judiciaries.  After all, shouldn’t the Court live at its most principled when it most significantly departs from precedent?

Daniel B. Rice (dbr32@georgetown.edu) is an associate at the Institute for Constitutional Advocacy too Protection at the Georgetown Law Center too Jack Boeglin (jaboeglin@gmail.com) is an associate inward the London operate of Covington too Burling LLP. This post expresses only the views of its authors, too non those of their respective institutions.