Friday, January 18, 2019

Herrera v. Wyoming: A Cautionary Encounter with Careless Repudiation

Guest Blogger

Daniel B. Rice and Jack Boeglin

The law of repudiating precedent is hopelessly muddled.  The Supreme Court often simply overrules decisions whose reasoning it chooses to disavow.  But it sometimes stops just short of doing so—repudiating the principle underlying a case without explicitly overruling the case itself.  When those enfeebled decisions are invoked in later litigation, how should the Court understand their residual force?  Have they been “effectively” overruled, overruled sub silentio, or perhaps limited to their facts?  And is there any difference between these formulations?

The absence of a shared analytical framework for answering these questions was on full display at last week’s argument in Herrera v. Wyoming.  The petitioner in Herrera, a member of the Crow Tribe, contended that Wyoming’s admission to the Union did not extinguish the Tribe’s right to hunt on unoccupied lands within the state, a right previously guaranteed by treaty.  In response, the State of Wyoming argued—as it had successfully below—that the dispute was squarely governed by the Court’s decision in Ward v. Race Horse (1896).

The Justices labored to understand the lingering import of Race Horse, which held that a tribe’s treaty-derived right to hunt on unoccupied lands terminates when the relevant territory is admitted to the Union as a state.  Race Horse, however, ran into trouble almost right out of the gate.  As the Court noted in Minnesota v. Mille Lacs Band of Chippewa Indians (1999), Race Horse “rested on a false premise” that had been “consistently rejected” in later cases dating back nearly a century.  The Justices underscored the magnitude of this doctrinal shift during oral argument in Herrera: “I don’t see how you can get more 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 in Mille Lacs, which thoroughly and systematically discredited that decision’s rationale, the Court failed to utter the magic words necessary to overrule the case, instead leaving its fate for another day.  Justice Breyer offered a guarded defense of this stepwise approach:

Possibly they should have added . . . the words “Race Horse is overruled,” but the Court didn’t.  I can understand that. . . . There are a lot of things to do every day, and you have to write your opinions and you start putting in a word like ‘overruled’ and some of your colleagues might think: Don’t do it, you don’t know what you’re getting, et cetera.  All we have to decide for this case is that Race Horse doesn’t bind us, okay?

Alas, the moment of reckoning has arrived, alongside the many questions left unresolved by Mille Lacs.  Which case governs HerreraRace Horse or Mille Lacs?  If Race Horse has not been overruled, but instead limited to its facts, what are those “facts”?  And do the circumstances of Herrera fall within that limited exception?  The facts of Race Horse and Herrera are strikingly similar, though not identical; they involve different tribes, different lands, and different treaties.  But the relevant treaty language in the two cases is exactly the same. 

Seizing on that similarity, three Justices—led by Justice Kavanaugh—expressed skepticism that the Court could draw any sensible distinctions between the two cases; for those Justices, ruling in the Tribe’s favor would likely require overruling Race Horse.  And indeed, both Herrera and the United States (as amicus) have urged the Court to do just that: put Race Horse out to pasture once and for all.

The Court is now left with three options (assuming that no ancillary issues derail a merits determination).  It can do what its precedents have long prefigured—overrule Race Horse and clarify that a state’s admission to the Union never impliedly terminates tribal treaty rights.  It can confine Race Horse to its precise facts, for reasons that no Justice expressed at argument, and determine whether Herrera falls within that narrow factual exception.  Or it can continue punting on Race Horse’s fate, identifying trivial factual distinctions between it and Herrera, thereby leaving Race Horse almost entirely stripped of precedential content, yet “somehow technically alive.” 

It didn’t have to be this way.  The Herrera conundrum resulted from a regrettable inattention to one of the most important features of stare decisis: how to discard unwanted precedent.  In a forthcoming article in the Virginia Law Review entitled “Confining Cases to Their Facts,” we aim to supply the analytical rigor missing from courts’ treatment of disfavored precedents.  We start by highlighting the distinction that featured so prominently in Herrera—that between the repudiation of a legal principle and the overruling of specific decisions decided in reliance upon it.

When a court repudiates a principle, it disavows the reasoning of an earlier case and indicates that it is no longer to be treated as good law in new contexts.  Doing so leaves a repudiating court with one of three alternatives:

(1)   Explicitly overrule decisions decided in reliance on the repudiated principle.
(2)   Explicitly preserve the holdings of cases that employ the repudiated principle.  This coupling of repudiation and preservation renders an earlier decision “confined to its facts.”
(3)   Postpone the question of whether to overrule or confine imperiled decisions until required to do so by a case whose facts cannot be distinguished.  (This is, regrettably, how Mille Lac dealt with Race Horse.)

Option 3 should never be employed, Justice Breyer’s tepid endorsement notwithstanding.  Cases left ravaged by the repudiation of a principle must eventually be either overruled or confined.  And as we develop at length in our article, only the protection of reliance interests can ever plausibly justify a decision to confine.  If no compelling, articulable reliance interests are at stake, the repudiation of a principle should trigger an immediate overruling.  It is, frankly, irresponsible to inflict lasting uncertainty on the legal system when confining will never be a live option.  To borrow Justice Breyer’s phrasing, absent weighty reliance interests, you do “know what you’re getting” when repudiating a principle—an all-but-guaranteed overruling at some point in the future.

We hope that the Court will learn from its latest troubles and use Herrera as an opportunity to underscore the centrality of repudiation to our system of stare decisis.  It is not the eventual choice between overruling and confining that unmakes a precedent, but the prior act of repudiation.  This shift in focus would not only save courts from awkward predicaments; it would also expose the unsoundness of tests that accord talismanic significance to the presence of an “overruling.”  Courts have routinely evaded the formal requirements of stare decisis—e.g., the Supreme Court’s “special justification” doctrine and the federal courts of appeals’ en banc rule—by simply confining cases to their facts, rather than overruling them outright.  These sorts of workarounds should not be tolerated moving forward.

By focusing on the consequences of repudiation at the moment of repudiation, the Court can forestall significant mischief and needless confusion, while at the same time modeling responsible precedential practices for the federal and state judiciaries.  After all, shouldn’t the Court be at its most principled when it most significantly departs from precedent?

Daniel B. Rice ( is an associate at the Institute for Constitutional Advocacy and Protection at the Georgetown Law Center and Jack Boeglin ( is an associate in the London office of Covington and Burling LLP. This post expresses only the views of its authors, and not those of their respective institutions.

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