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Apart from the fascinating federal courts issue of tribal sovereign immunity, Michigan v. Bay Mills Indian Community offers a deep discussion of stare decisis for common law decisions, and what inferences should be drawn from legislative inaction. The dispute arises over the precedential value of a 1998 case, Kiowa Tribe v. Manufacturing Technologies, that extended tribal sovereign immunity to commercial activities that exist off the reservation. This allows a number of tribal-owned businesses, such as casinos, to operate outside the normal scope of state law. Since 1998, Congress has not taken any steps to remedy this decision. From this, Justice Kagan infers that Congress has acquiesced to Kiowa.

All that we said in Kiowa applies today, with yet one more thing: Congress has now reflected on Kiowa and made an initial (though of course not irrevocable) decision to retain that form of tribal immunity. Following Kiowa, Congress considered several bills to substantially modify tribal immunity in the commercial context. Two in partic- ular—drafted by the chair of the Senate Appropriations Subcommittee on the Interior—expressly referred to Kiowa and broadly abrogated tribal immunity for most torts and breaches of contract. See S. 2299, 105th Cong., 2d Sess. (1998); S. 2302, 105th Cong., 2d Sess. (1998). But instead of adopting those reversals of Kiowa, Congress chose to enact a far more modest alternative requiring tribes either to disclose or to waive their immunity in contracts needing the Secretary of the Interior’s approval. See Indian Tribal Economic Development and Contract Encouragement Act of 2000, §2, 114 Stat. 46 (codified at 25 U. S. C. §81(d)(2)); see also F. Cohen, Handbook of Federal Indian Law §7.05[1][b], p. 643 (2012). Since then, Congress has continued to exercise its plenary authority over tribal immunity, specifically preserving immunity in some contexts and abrogating it in others, but never adopting the change Michigan wants.11 So rather than confronting, as we did in Kiowa, a legislative vacuum as to the precise issue presented, we act today against the backdrop of a congressional choice: to retain tribal immun- ity (at least for now) in a case like this one.12

In dissent, Justice Thomas finds “unavailing” this argument about legislative inaction:

In support of its adherence to stare decisis, the majority asserts that “Congress has now reflected on Kiowa” and has decided to “retain” the decision. Ante, at 18; see also ante, at 19 (“[W]e act today against the backdrop of an apparent congressional choice: to keep tribal immunity . . . in a case like this one”). On its face, however, this is a curious assertion. To this day, Congress has never granted tribal sovereign immunity in any shape or form—much less immunity that extends as far as Kiowa went. What the majority really means, I gather, is that the Court must stay its hand because Congress has implicitly approved of Kiowa’s rule by not overturning it.

This argument from legislative inaction is unavailing. As a practical matter, it is “ ‘ impossible to assert with any degree of assurance that congressional failure to act rep- resents’ affirmative congressional approval of ” one of this Court’s decisions. Patterson v. McLean Credit Union, 491 U. S. 164, 175, n. 1 (1989) (quoting Johnson v. Transporta- tion Agency, Santa Clara Cty., 480 U. S. 616, 672 (1987) (SCALIA, J., dissenting)); see also Girouard v. United States, 328 U. S. 61, 69 (1946) (“It is at best treacherous to find in congressional silence alone the adoption of a con- trolling rule of law”); Helvering v. Hallock, 309 U. S. 106, 121 (1940) (“[W]e walk on quicksand when we try to find in the absence of corrective legislation a controlling legal principle”). There are many reasons Congress might not act on a decision like Kiowa, and most of them have noth- ing at all to do with Congress’ desire to preserve the deci- sion. See Johnson, 480 U. S., at 672 (SCALIA, J., dissent- ing) (listing various kinds of legislative inertia, including an “inability to agree upon how to alter the status quo” and “indifference to the status quo”).

Even assuming the general validity of arguments from legislative inaction, they are a poor fit in this common-law context. Such arguments are typically based on the prem- ise that the failure of later Congresses to reject a judicial decision interpreting a statute says something about what Congress understands the statute to mean. See, e.g., id., at 629, n. 7 (majority opinion). But it is not clear why Congress’ unenacted “opinion” has any relevance to de- termining the correctness of a decision about a doctrine created and shaped by this Court. Giving dispositive weight to congressional silence regarding a common-law decision of this Court effectively codifies that decision based only on Congress’ failure to address it. This ap- proach is at odds with our Constitution’s requirements for enacting law. Cf. Patterson, supra, at 175, n. 1 (“Congress may legislate . . . only through the passage of a bill which is approved by both Houses and signed by the President. Congressional inaction cannot amend a duly enacted statute” (citation omitted)). It is also the direct opposite of this Court’s usual approach in common-law cases, where we have made clear that, “in the absence of an applicable Act of Congress, federal courts must fashion the governing rules.”  

Allowing legislative inaction to guide common-law deci- sionmaking is not deference, but abdication.6 

6Of course, stare decisis still applies in the common-law context; I reject only the notion that arguments from legislative inaction have any place in the analysis.

I also reject the majority’s intimation that stare decisis applies as strongly to common-law decisions as to those involving statutory interpretation. The majority asserts that stare decisis should have “‘special force’” in this case because “‘Congress remains free to alter what we have done.’ ” Ante, at 16 (quoting Patterson v. McLean Credit Union, 491 U. S. 164, 172–173 (1989)). Although the Court has invoked this reasoning in the statutory context, I am not aware of a case in which we have relied upon it to preserve a common-law decision of this Court. Indeed, we have minimized that reasoning when interpreting the Sherman Act precisely because “the Court has treated the Sherman Act as a common-law statute.” Leegin Creative Leather Products, Inc. v. PSKS, Inc., 551 U. S. 877, 899 (2007) (emphasis added); see also State Oil Co. v. Khan, 522 U. S. 3, 20–21 (1997) (“[T]he general pre- sumption that legislative changes should be left to Congress has less force with respect to the Sherman Act in light of the accepted view that Congress ‘expected the courts to give shape to the statute’s broad mandate by drawing on common-law tradition’”). Surely no higher standard of stare decisis can apply when dealing with common law proper, which Congress certainly expects the Court to shape in the absence of legislative action. See, e.g., National Metropolitan Bank v. United States, 323 U. S. 454, 456 (1945).

With the retirement of Justice Souter, the Court’s most strident opponent of the Seminole Tribe line of cases is no longer on the bench. In Bay Mills, RBG reaffirmed her opposition to cases finding that Congress has limited powers in abrogating a state’s sovereign immunity:

For the reasons stated in the dissenting opinion I joined in Kiowa, id., at 760–766 (opinion of Stevens, J.), and co- gently recapitulated today by JUSTICE THOMAS, this Court’s declaration of an immunity thus absolute was and re- mains exorbitant. But I also believe that the Court has carried beyond the pale the immunity possessed by States of the United States. Compare ante, at 3, n. 3 (THOMAS, J., dissenting), with Seminole Tribe of Fla. v. Florida, 517 U. S. 44, 100 (1996) (Souter, J., dissenting) (“[T]he Court today holds for the first time since the founding of the Republic that Congress has no authority to subject a State to the jurisdiction of a federal court at the behest of an individual asserting a federal right. . . . I part company from the Court because I am convinced its decision is fundamentally mistaken.”); Kimel v. Florida Bd. of Re- gents, 528 U. S. 62, 93 (2000) (Stevens, J., dissenting in part and concurring in part) (“Congress’ power to author- ize federal remedies against state agencies that violate federal statutory obligations is coextensive with its power to impose those obligations on the States in the first place. Neither the Eleventh Amendment nor the doctrine of sovereign immunity places any limit on that power.”); Alden v. Maine, 527 U. S. 706, 814 (1999) (Souter, J., dissenting) (court’s enhancement of the States’ immunity from suit “is true neither to history nor to the structure of the Constitution”). Neither brand of immoderate, judi- cially confirmed immunity, I anticipate, will have staying power. 

Hello everyone. I apologize for interrupting your summer break with this note. I have submitted grades for Constitutional Law. You can download the exam question, and the A+ paper (If this is yours, please drop me a line!).

This was an extremely difficult test, by design. The two questions probed your understanding of a wide, wide range of topics we covered this semester, from the first to the last class. The first question asked you to situate yourself in 1942 after Pearl Harbor, and explore a tough executive power issue that was a mashup of the Japanese detention during WWII, and the detention of enemy combatants at Guantanamo Bay in 2002. The issues were similar to things you’ve seen, but different enough to give you room to think. Many of you were able to answer the question, as I requested, by limiting yourself to the cases decided at that time. Many of you didn’t even bother to limit yourself to this time period. By design, the final part of the first question was a policy question that asked you to comment on the maxim, “In times of war, the laws fall silent.” We spent a solid 20 minutes discussing this in class. Those who took good notes on this topic were well prepared to answer it.

The second question was (in my estimation) even harder. Instead of asking you whether bans on gay marriage are constitutional (maybe what you were expecting), I asked if Congress could mandate that states recognize gay marriage. This question offered a difficult mashup of Congress’s Section 5 powers, with waivers of sovereign immunity, and federalism more broadly. The prompts were very specific, and I told you exactly what I was looking for. For some reason, a number of you failed to even mention Section 5, even though the question specifically asked for it. Also, this gave me an opportunity to test you on the First Amendment’s religion and speech clauses. I recall someone in class asked if those were on the exam. As I said in class, yes. So this should not have been much of a surprise. The final part of the second question offered a tough policy question about moral disapproval, that we focused on for some length when we discussed Lawrence and Windsor. Those who got those discussions were well prepared to answer it.

Here is the breakdown of the grades.  As you can tell by the Dickensian distribution, this was a tale of two classes.

First, the good news. A significant number of you really, really got it. In particular the A+, A, and A- papers exquisitely explained the interplay of executive power and the separation of powers, and nailed the relationship between Section 5, sovereign immunity, and federalism (one of the toughest concepts we covered all year). Also, many of the paper worked in various political concepts, historical references, and other topics we discussed in class. Probably a third of you cited Madison’s admonition from Federalist No. 51 that “ambition must be made to counteract ambition.” If you remember nothing else from this class, then I will be proud.

Second, the not-so-good news. There were a higher-than-average number of students with a D+ or below, including three failures. Most of the papers in this range did not fully answer all the questions, or left entire sections blank. Further, they reflected very superficial answers that ignored huge areas of constitutional law, and missed our many class discussions on the topic. Though I do not have the names of the students, I am willing to wager that there is a strong congruence and proportionality between those who consistently skipped class, or came to class unprepared, and those who scored a D+ or lower. If you find yourself in this group, please take a moment to reflect on your attendance and preparation for this challenging course.

I would like to thank all of you for making this a very enjoyable and enlightening class. I learned so much from each and every one of you, and for that I am forever grateful. I hope you will take and treasure this knowledge, and use it to accomplish great things throughout your legal career. Keep the Constitution close to your hearts.

I’ve blogged several times about Courtney v. Danner, a case that challenges a boat monopoly granted by Washington under the 14th Amendment’s Privileges or Immunities Clause.

Today, the WSJ has editorialized in favor of a cert grant in the case:

In 2011 the Courtney brothers sued with the help of the Institute for Justice, arguing that the 55-mile long lake in the Cascades is among the “navigable waters of the United States” and thus they have a right to operate a business on it under the Constitution’s Privileges and Immunities Clause. The Article IV clause was reinforced by the Fourteenth Amendment that says “[n]o State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.”

Many legal scholars treat the clause as a dead letter since the 1873 Slaughter-Housecases interpreted it narrowly. But Slaughter-House expressly preserved the clause’s protection for “the right to use the navigable waters of the United States, however they may penetrate the territory of the several States.” The Corfield v. Coryell decision of 1823 had previously upheld the right to use waterways in relation to federal law.

This subtlety was lost on the Ninth Circuit Court of Appeals, which ruled in December 2013 that, sure, the Privileges or Immunities Clause protects the right for everyone touse the navigable waters, but not for any economic purposes. The clause only guarantees “a right to navigate the navigable waters of the United States,” the Ninth Circuit wrote, not “to utilize those waters for a . . . specific professional venture” or “to operate a particular business using” those waters. Leave it to the Ninth Circuit to define operating a ferry as different than navigating waters.

The Courtney brothers’ desire to start their own business without the government protecting a monopoly is a good opportunity for the Supreme Court to review the Constitution’s protection for economic rights. The High Court will soon consider the brothers’ request for certiorari, and we hope the Justices take the case.

The Supreme Court called for a response, and it will be considered at the May 29 conference.

As fast as greased lightning, we may have the first violation of Town of Greece v. Galloway. The ACLU claims that Chesterfield, VA has limited legislative prayers to “ordained religious leaders of monotheistic religions.” Apparently, they have denied a Wiccan request to lead the invocation:

Almost all clergy who had delivered invocations represented Christian denominations, however, and the county denied a Wiccan’s request to be added to the invocation list on the ground that Wicca is “neo-pagan and invokes polytheistic, pre-Christian deities,” and therefore it does not fall within “the Judeo-Christian tradition.” That claim led to a lawsuit sponsored by Americans United and the ACLU of Virginia.

The board continues to exclude some faiths, the letter says, even those that are monotheistic. For example, the county’s list of religious organizations invited to deliver invocations excludes the Chesterfield County Sikh congregation Richmond Gurdwara, even though, according to the group’s website, Sikhs practice “strict monotheism.”

If true, and Greece is the word, this practice would not stand. Here is a letter that goes together with the Greece claim. Like rama lama lama ka dinga da dinga dong.

Update: Kevin Walsh writes at Mirror of Justice that this policy seems consistent with Town of Greece and Marsh v. Chambers. If the city has a policy that limits those who can speak to “monotheistic religions,” I don’t see how that complies with Justice Kennedy’s discussion about how all faiths must be invited. In fact, a Wiccan priestess was one of the few non-Christian leaders who gave an invocation before the session in the Town of Greece.

Update 2: While Justice Kennedy didn’t mandate a take-all-comers policy, I find a policy limiting clergy to “monotheistic” religions inconsistent with his opinion.