Ever since the Supreme Court formally recognized the power of judicial review in the landmark 1803 case of Marbury v. Madison, the be-all and end-all on constitutionality has been the Supreme Court. Informed Americans and readers of SCOTUSblog know that means the court ultimately decides the laws by which we must live, and in that way, it is arguable that nine unelected justices dictate American priorities more so than any president, Senate majority leader, business tycoon, or political pundit. After all, they can override the executive or legislative branches, as well as lower courts and state decisions on federal law, and in recent years have increasingly done so through a "shadow docket” of decisions that are made without public argument or deliberation.For 70 of the 220 years since the Supreme Court asserted its jurisdiction over American law – so nearly one-third of this history – there has been a reliable and consistent platform of discourse about the court (and many other subjects): "The Open Mind," the longest-running series in PBS history and one that my grandfather founded in 1956 and that I have hosted since his death in 2013. From deliberations about segregation and discrimination to litigation surrounding monopolies and anti-trust, privacy in America and the Patriot Act, and blocking citizen accounts on Twitter/X, “The Open Mind” – like SCOTUSblog – has been studiously attentive to Supreme Court opinions, dissents, and what, exactly, this all means for our republic. Along the way, our guests have included a who’s who in constitutional theater, including Justice Stephen Breyer, Judge Robert Bork, Circuit Judges Robert Katzmann and Richard Posner, Supreme Court advocates Floyd Abrams and Neal Katyal, scholars Derrick Bell and Martha Minow, a shaper of contemporary Supreme Court reporting Anthony Lewis, and a new generation of legal academics like law professors Justin Driver, Leah Litman, and Carissa Byrne Hessick.On Wednesday, I will have SCOTUSblog’s founder Amy Howe and executive editor Zachary Shemtob as my guests to discuss the Supreme Court’s 6-3 ideological majority, whether the justices would ever be open to the possibility of reform, transparent ethics standards, the possibility of expansion, and much more.Before then, however, I wanted to share several things that I’ve learned from being part of a series that has spent seven decades covering the court.First is how gradually, and then all at once, history can change on the court. When “The Open Mind” was first broadcast, Chief Justice Earl Warren had headed the court for only three years and would come to herald an unprecedented progressive era on it. This changed with the Burger era, and then dramatically so with the Rehnquist and Roberts courts. Once on the margins of Supreme Court jurisprudence, originalism, in particular, has sought to halt the emerging practice of Living Constitutionalism. In episodes over the past quarter of a century, viewers can see that pendulum swing – at first incremental and then rapid-fire – from a liberal to conservative majority. Yet this was also contingent. Had Hillary Clinton won both the Electoral College and popular vote in 2026, we might be witnessing a liberal era on the court rather than a conservative super-majority.Another enduring subject is cameras in the courtroom. This was one of my grandfather’s favorite subjects to explore. He saw this discussion as essential to Americans' engagement in the branch of government that was becoming increasingly pivotal in deciding the future of their lives. While today there is live audio of oral arguments, I wonder if the Supreme Court had also opened its doors to cameras – as a civic counterpoint to the sensationalistic Court TV coverage – more citizens would have taken sustained interest in the court’s role in our republic. And it is now natural to wonder whether that time may have passed: In today’s era of social media, clips are all too often deployed as ammunition to bolster one side rather than to find common ground.This period also corresponded with the increasingly punitive prosecutions and imprisonment of the American people – which has made the United States per capita the most incarcerated nation in the developed world. Although the court has issued surprisingly few decisions in this regard, the fact that one-third of American families have a loved one impacted in the justice system has significant implications for both federal and state law. In a series of episodes featuring national leaders like Equal Justice Initiative founder Bryan Stevenson as well as local and state reformers, we explored facets of the contemporary justice reform. Our subjects included the death penalty, life sentences, and probation and parole – some areas of the carceral state in which the court has actually spoken.Finally, and returning to my first point regarding historical shifts on the court, one of the things that has fascinated me most – and still does not get enough discussion – is that the composition of the court, and, indeed, the fate of our country, is determined by the status of nine individuals’ health (namely, who dies, and when, and who is president and the senate majority leader at any given moment). Even if one believes life tenure for judges is a good thing, today’s model feels more like royal inheritance than republicanism, especially considering that three of the newest justices were appointed by President Donald Trump in his first term, when he lost the nation’s popular vote.There is, of course, far more to say about the Supreme Court. But I’ll end with an anecdote. In the 1990s, I was not more than 10 years old when my grandfather took me on my first trip to Washington, D.C. to see the memorials and monuments in all their glory. He also arranged a greeting with Justice Breyer, whom he had interviewed as the chief judge of his circuit court before his Supreme Court nomination.After graciously receiving us in his chambers, Breyer sent me off with an autographed pocket U.S. Constitution. I thanked him and probed innocently: “But, Mr. Justice, don’t you need this?” (Although he didn’t respond at the time, I was later told he found this quite amusing – Breyer is well-known for his “professorial” sense of humor.)In truth, we all should be armed with this document and debate often its meaning – clichéd as this may sound, it remains the bedrock of our founding and evolving life as a nation.

In a recent SCOTUSblog article, law professor Josh Blackman proposed that the chief justice farm out to his colleagues his roles of presiding at oral argument and assigning opinions when in the majority. “[S]ometimes old traditions run their course,” he wrote, “and new traditions should begin.”This is not the first proposal to rearrange the chief justice’s duties. Indeed, the office has evolved haphazardly within its meager constitutional moorings; the only mention of it in the Constitution is that the chief justice preside at presidential impeachment trials.In the beginningIn 1790, George Washington told the Marquis de Lafayette that “[b]y having Mr. Jefferson at the head of the department of state, Mr. Jay of the judiciary, Hamilton of the treasury, and Knox of that of war, I feel myself supported by able coadjutors, who harmonize extremely well together.” Washington sought no control over judicial decisions but saw the chief justice – John Jay at the time – as an executive branch advisor, reflecting English practice. In that vein, Washington turned to Jay for all types of help. When preparing a state-of-the-union message, for example, he sought “every matter which may occur to the heads of the Departments” and thus asked Jay for “anything in the judiciary line, anything of a more general nature.”Congress assigned the chief justice other high visibility executive branch tasks, making what Constitutional Convention delegate George Mason called “further use . . . of the Judges.” The chief justice became an administrator of the sinking fund to retire the Revolutionary War debt. Additionally, to protect the integrity of the nation’s coins, Congress directed an annual assay “under the inspection of the Chief Justice” and several others. Gradually, Jay and his colleagues took exception to these ex officio side jobs. Jay skipped a sinking fund meeting because he saw his “[d]uty to attend the Courts as being in point of legal Obligation primary, and to attend the Trustees as secondary.” He also led the justices in declining Washington’s invitation to become on-tap legal advisors. Today, the only major vestige of the early republic’s efforts to use the chief justice outside the judiciary is as an ex officio regent of the Smithsonian institution and related bodies, a role dating to 1846.That said, presidents and others have occasionally turned to justices for non-ex officio tasks. For instance, Washington designated Jay – an experienced diplomat – to be an “envoy extraordinary” to Great Britain. More recently, President Harry Truman assigned Justice Robert Jackson as chief Nuremberg prosecutor, and President Lyndon Johnson implored a reluctant Chief Justice Earl Warren to chair the Kennedy assassination commission because, Warren recalled, Johnson “thought no less a personage than the Chief Justice of the United States. . . should head it.”These days, such assignments are largely relics of the past.The chief justice’s rolesCurrently, the chief justice’s only major role beyond the Supreme Court (and the Smithsonian) is what the judiciary’s initial long-range plan called “the head of the federal judicial system . . . in matters of judicial administration.” It is a position with three components: judicial administrator, judicial spokesperson, and judge designator.First, chief justices oversee the administration of a small federal agency – the federal judiciary. He does so, not by an all-inclusive congressional designation, but because by statute he presides over the U.S. Judicial Conference – 26 judges serving ex officio or by election. By tradition, the chief justice appoints its now-25 committees, which do much of the conference’s work. He also appoints the Director of the Administrative Office of U.S. Courts and chairs the Federal Judicial Center board.The judiciary is tiny. (Its $10 billion budget is less than two-tenths of one percent of total federal spending, and its 30,000 employees pale in comparison to the Justice Department’s 115,000.) But its administration is not a simple matter. The Administrative Office exercises pages of financial, personnel, automation, and security duties under the conference’s supervision. These and other matters in the conference’s remit have recently blossomed into controversies over judges’ workplace conduct, oversight of financial disclosures, judges’ physical security, and administration of the judicial discipline machinery (e.g., here and here). Amendments to the courts’ procedure and evidence rules and even some Federal Judicial Center educational programs make news. The chief justice is ultimately responsible for these activities even if he isn’t personally involved in most of them and goes unmentioned in news reports.Second, chief justices are the federal judiciary’s major spokesperson and in that role promote policies they regard as significant, often in conference and lecture settings. The press covers this doggedly, and the chief provides a year-end report (since the Burger era) on the status of the judiciary.Third, chief justices designate judges for the Foreign Intelligence Surveillance Court, which entertains government applications to conduct national security investigations, as well as on the Judicial Panel on Multi-District Litigation, which assigns related cases in multiple districts to a single district for pretrial procedures.How did we get here?Ultimately, these roles are the result of incremental adaptations, not some grand design. Chief Justice William Howard Taft persuaded Congress to create the Judicial Conference’s forerunner in 1922. Comprising nine senior appellate judges and chaired by the chief justice, it coordinated the chief justice’s temporary assignment of judges to other courts. The chief justice gained more authority in 1939 when Congress revised and enacted a remnant of President Franklin Roosevelt’s Judicial Procedures Reform Bill of 1937 (which also included his “court-packing” plan) by transferring the Justice Department’s court administration functions to the new Administrative Office to function under the conference’s supervision. The chief justice’s sole authority to appoint conference committees then emerged without much consideration of other approaches.Likewise, when Congress created the FISA court in 1978, vesting appointments in the chief justice created “only a small amount of debate.” “[H]istorical practice” (namely, chief justice appointments since 1971 to a temporary wage-and-price controls court) was said to have “served as a persuasive justification.”Rethinking the officeIn 1978, Chief Justice Warren Burger warned that the duties of the office were almost overwhelming. To ease the burdens, he floated the idea of a statutory “circuit justice for administration,” in which sitting judges could serve temporarily. This idea remained under discussion in the judiciary as late as 1995.Others raised different concerns following the courts’ considerable growth during the Burger and Rehnquist eras. Commentators agreed that the chief justice had too much work, but further argued that because that work has policy implications, vesting it in one person with unlimited tenure is undemocratic. Such commentators asked, and continue to ask, whether chief justice appointments to the conference committee and the FISA court reflect systematic preferences for judges likely to agree with the chief justice’s views.Alternative approaches fall into two broad categories: chief justice term limits and statutory reassignment (or chief justice delegation) of some or all duties to other justices or judges.Term limiting the chief justice is consistent with how Congress in 1982 sought turnover and stability in the positions of the chief circuit and district judge – designation by age and seniority, an age cap of 70, and seven-year maximum terms, thus making it likely that judges with different approaches to the job, and appointees of presidents of both parties, rotate in and out of the position. As to chief justices, however, who have more administrative clout than chief district and circuit judges, the last year in which a Democratic appointee served in that office was 1953 (the year Chief Justice Fred Vinson died).Delegating the chief justices’ duties to lower court judges is hardly a new idea. Since 1945, the Conference’s Committee on Intercircuit Assignments and its forerunners have had the lead role in implementing the chief justice’s statutory authority to approve voluntary intercircuit assignments of judges to other courts, a slimmed-down version of the conference’s original task.Upon becoming chief justice in 1986, William Rehnquist launched a study of the entire committee system, which recommended “strengthening the authority of the Executive Committee to deal with internal and external Conference business [and] allow[ing] the Chief Justice to delegate some of his Conference duties to another Conference member.” The executive committee is now a powerful and constant overseer of the conference’s activities, no doubt taking actions that might otherwise reach the chief justice’s desk.These delegations have provided greater administrative efficiency but not necessarily the policy diversity that advocates seek. Given the deference within the judicial hierarchy, as long as the chief justice is “the head of the federal judicial system,” other judges will likely try to administer consistent with the chief justice’s perceived preferences. And there is value, whatever duties are delegated, for the chief justice to retain that role. (Whatever the force of Chief Justice John Roberts’ admonitions to stop personal attacks on judges, they have more strength than if issued by a lower court judge who by rotation was presiding over the Judicial Conference.)Delegation to other justices would lessen the likelihood of deference but enhance the likelihood of resistance. Other justices might like a turn at presiding at oral argument but not at overseeing federal judicial administration, which Roberts acknowledged in 2023 is “an acquired taste.” Indeed, when in 1939 Congress deliberated who would supervise the new Administrative Office, the justices were cool to their possible involvement. “[T]he duty of the Court,” said Justice Louis Brandeis, was “to adjudicate, not administer.” Even at that, the 1939 Congress put the Administrative Office under the conference’s supervision but told the entire court to appoint its director. Only in 1990 did it transfer that formal authority to the chief justice, the only justice with lower-court judicial administration duties. No associate justice, to my knowledge, contested the reassignment.In the final analysis, there is something of a quandary. It’s no disrespect to any recent chief justice to worry that their powerful, life-tenured executive position sits uneasily within the principles of democratic government. But, as is often the case, it’s not clear if or how well alternative approaches would work.

This is the sixth of seven introductory articles on the relevance for constitutional law and the Supreme Court of the “born free and equal” clauses, which appeared in the Declaration of Independence and in six out of 12 state constitutions when the federal Bill of Rights was ratified in 1791, in 24 out of 37 state constitutions when the 14th Amendment was ratified in 1868, and which is in 37 out of 50 state constitutions today. The “born free and equal” clause of the Massachusetts Constitution of 1780, for example, provided that:Article I. All men are born free and equal, and have certain natural, essential, and unalienable rights; among which may be reckoned the right of enjoying and defending their lives and liberties; that of acquiring, possessing, and protecting property; in fine, that of seeking and obtaining their safety and happiness.In my initial articles, I showed that the “born free and equal” idea is deeply rooted in American history and tradition, and applied this clause within the context of same-sex marriage and eugenics laws, among other major Supreme Court precedents.Today, I want to turn to the court’s incorporation of the first eight amendments of the Bill of Rights and argue that they should all be fully incorporated – that is, applied to the states – which the Supreme Court has not yet done. I will also argue that the court in Kian v. Florida, which it is hearing this coming term, should hold that state criminal defendants are entitled to a 12-person criminal jury trial and not a six-person one, as prior precedent wrongly allows for. Likewise, the court should overturn its 1916 decision in Minneapolis & St. Louis R. Co. v. Bombolis and incorporate the Seventh Amendment’s right to a civil jury trial to apply against the states.***In 2010’s McDonald v. City of Chicago, the court held the Second Amendment right to own a gun in one’s home was deeply rooted in American history and tradition, thus meriting incorporation. Specifically, the court correctly reasoned that because 22 out of 37 states in 1868 and 59% of the states in 1868 (when the 14th Amendment was ratified) had Second Amendment analogues, the right to own a gun in one’s home was an enduring one.Based on McDonald, I use 22 states as a benchmark for incorporation and show that 22 or more states in 1868 recognized an analogue to almost all of the rights in the federal bill of rights (these numbers are further detailed here). The entire First Amendment was deeply rooted in American history and tradition in 1868. As of that year, 27 out of 37 states forbade an establishment of religion in their state bills of rights and all 37 states forbade state laws prohibiting the free exercise of religion; 32 of 37 states forbade laws abridging freedom of speech, and all 37 forbade laws abridging freedom of the press; 34 states out 37 forbade limits on the right to petition the government for the redress of grievances; and 36 out of 37 guaranteed the right to assemble. The Second Amendment right to keep and bear arms, as mentioned above, was protected by 22 out of 37 state bills of rights in 1868.The Third Amendment right not to have soldiers quartered in one’s house was protected by 26 out of 37 states in 1868.The Fourth Amendment protection from unreasonable searches and seizures was protected by 36 out of 37 states in 1868, and 36 out 37 states in 1868 also had rules, as the Fourth Amendment does, as to the lawful issuance of warrants.The Fifth Amendment protection against double jeopardy was recognized by 31 out of 37 states in 1868; 34 out of 37 states in 1868 guaranteed a right against self-incrimination; 32 out of 37 states guaranteed a right to confront the witnesses against you in 1868; 35 out of 37 states had due process of law clauses; and 33 out 37 state bills of rights had taking clause analogues in 1868.The Sixth Amendment right to jury trial in criminal cases was protected in all 37 states in 1868.The Seventh Amendment right to a jury trial in civil cases was protected in 1868 by 36 out of 37 state bills of rights.And the Eighth Amendment protection against excessive bail was protected in 36 of 37 state bills of rights in 1868; the protection against excessive fines existed in 35 out of 37 states as of that year; and the protection from cruel and unusual punishments was recognized in 34 out of 37 states.Given this, it is clear as a bell that the entire federal Bill of Rights – except for the right to indictment by a grand jury – was deeply rooted in American history and tradition, as expressed in the state bills of rights in 1868 when the 14th Amendment was ratified.The legislative history of the 14th Amendment (as argued by fellow SCOTUSblog columnist Akhil Amar) also supports complete incorporation of the Bill of Rights. Senator Jacob Howard, who reported the 14th Amendment’s text to the Senate on behalf of the Joint Committee on Reconstruction said the following:It would be a curious question to solve what are the privileges and immunities of citizens of each of the States in the several States. I do not propose to go at any length into that question at this time. … But we may gather some intimation of what probably will be the opinion of the judiciary by returning to a case adjudged many years ago in one of the circuit courts of the United States by Judge Bushrod Washington of the Supreme Court; and I will trouble the Senate but for a moment by reading what the very learned and excellent judge says about these privileges and immunities of the citizens of each State in the several States. It is the case of Corfield v. Coryell.Judge Washington says: …Such is the character of the privileges and immunities spoken of in the section of the fourth article of the Constitution. To these privileges and immunities, whatever they may be—for they are not and cannot be fully defined in their entire extent and precise nature—to these should be added the personal rights guaranteed and secured by the first eight amendments of the Constitution …It is high time for the court to also adopt this understanding.***This all brings us to Kian v. Florida. In the 1970 case of Williams v. Florida, the Supreme Court allowed for six-person rather than 12-person juries in state criminal cases. I think the word “jury” is a legal term of art that means 12 people by definition – and this was historically understood as such. Thus, Noah Webster’s 1828 online Dictionary of American English, which the ratifiers of the 14th Amendment would have used, defines “jury” as follows:JU'RY, noun [Latin juro, to swear.] A number of freeholders, selected in the manner prescribed by law, empaneled and sworn to inquire into and try any matter of fact, and to declare the truth on the evidence given them in the case. Grand juries consist usually of twenty four freeholders at least, and are summoned to try matters alleged in indictments. Petty juries, consisting usually of twelve men, attend courts to try matters of fact in civil causes, and to decide both the law and the fact in criminal prosecutions. The decision of a petty jury is called a verdict.Samuel Johnson’s Online Dictionary of English defines “jury” in the same way:JU’RY, n.s. [jurata, Lat,jure, Fr.] Jury, a company of men, as twenty-four, or twelve, sworn to deliver a truth upon such evidence as shall be delivered them touching the matter in question.The ratifiers of the federal Bill of Rights would then have understood that a jury of 24 persons was required to indict a person, while a jury of 12 persons, not six, was required by the Sixth Amendment to try a person. (Amar also explains this in his splendid amicus brief in Kian v. Flordia.)Similarly, a jury of 12 would have been required in all civil cases at common law under the Seventh Amendment. As Justice Neil Gorsuch said in a statement respecting the denial of review in Thomas v. Humboldt County, California:The right to a civil jury trial remained so deeply rooted that perhaps 97% of Americans at the time lived in States that guaranteed the right. See S. Calabresi & S. Agudo, Individual Rights Under State Constitutions When the Fourteenth Amendment Was Ratified in 1868, 87 Texas L. Rev. 7, 116 (2008). In fact, the civil jury trial right may have enjoyed even more robust protection in American States than various other rights this Court has deemed fit for incorporation. See Timbs, 586 U. S., at 152 (35 out of 37 States expressly forbade excessive fines at the time of the Fourteenth Amendment’s adoption); McDonald, 561 U. S., at 777 (22 of the 37 States “explicitly protected the right to keep and bear arms” in 1868).Justice Gorsuch is correct. The Seventh Amendment should be incorporated to apply against the states through the 14th Amendment. In a properly presented case, the Supreme Court should grant review on this question and, as with regard to juries fewer than 12 persons, correct this historical injustice.

Plus, what artificial intelligence misunderstands about SCOTUS.

I wanted to begin this series for SCOTUSblog by discussing some fundamentals (and fundamental confusions) of federal Indian law. Despite the common understanding that federal Indian law is difficult and confounding, I teach my students that its foundational principles are actually fairly simple. Federal law is supreme in Indian affairs, preempting state law (Washington v. Cougar Den). Tribal nations (or “Indian tribes,” to use the parlance of the Constitution) are sovereign governments (United States v. Lara). The judiciary is to interpret ambiguous treaty and statutory provisions to the benefit of tribal interests (Herrera v. Wyoming). Congressional enactments rationally related to the fulfillment of that responsibility are constitutional (Morton v. Mancari).Despite this relative simplicity, Supreme Court justices regularly complain that federal Indian law precedents are difficult and even incompatible with the Constitution. Justice Clarence Thomas, known for regularly assailing federal Indian law precedents, decried in 2004 “the confusion reflected in our precedent” in a case involving the power of Congress to restore or reaffirm tribal nations’ inherent power to prosecute nonmember Indians. Justices Samuel Alito and Brett Kavanaugh repeatedly asserted during one oral argument that an equal protection challenge to the Indian Child Welfare Act (a 1978 federal law that seeks to keep Indian children with Indian families) raised “difficult” questions. (Kavanaugh even wrote separately to encourage a future vehicle to challenge aspects of the act.) They were joined by the federal government’s counsel, there to defend the statute, who nevertheless opined during a series of hypothetical scenarios from the court that these questions were “difficult to defend.”In fact, in the entire history of federal Indian affairs enactments, only two federal statutes have been struck down by the Supreme Court. One case, 1911’s Muskrat v. United States, taught in federal courts classes nationally, involved a strange statutory provision that allowed Cherokee tribal citizens to challenge an act of Congress only potentially impacting them, essentially authorizing the federal judiciary to render an advisory opinion. The second law, struck down twice by the court, allowed first the Interior Department and then tribal nations to confiscate “de minimus” property interests in Indian lands without compensation (see Hodel v. Irving and Babbitt v. Youpee).And yet the litany of judges figuratively throwing up their hands in frustrated confusion continues. Perhaps it’s useful to separate the areas of confusion into three buckets.The first bucket is Congress. Thanks to the Indian commerce clause and to the exercise of the treaty power, Congress has first stab at making Indian affairs policy. In the history of federal Indian law and policy, Congressional policy has vacillated between two opposing poles. On one hand, from the founding until the late 1960s or early 1970s, Congressional policy more or less consistently favored the slow eradication of tribal governments and Indigenous land holdings. Congress wavered on how to go about this project. At times, Congress directly sought to scrub out whole regions of Indian country, as it did during the early- to mid-19th century’s Removal Era and the mid-20th century’s Termination Era. Mostly, Congress sought to create incredibly difficult conditions for tribal nations that might force them into oblivion, such as the Allotment and Assimilation Era of the latter half of the 19th century. In the 1970s until the current period, an era we call the Self-Determination Era, Congress has aggressively supported tribal interests – the polar opposite policy from removal, termination, and assimilation. Despite congressional consistency for the last 50 years, Thomas still has referred to Indian affairs policy by the inaccurate and questionable label, “schizophrenic.” This is because such vacillating policies, for Thomas, create inconsistent precedents.The second bucket is jurisprudential. Recently, the court lamented the “confusion” in its precedents that have sustained congressional power without identifying the source or scope of that power (see Haaland v. Brackeen). As far back as 1886, in United States v. Kagama, for example, the court described the relationship of Indian tribes to the national government as “an anomalous one, and of a complex character.” Perhaps the most infamous incidence of confusion was in Oliphant v. Suquamish Indian Tribe and United States v. Wheeler, decided 16 days apart in 1978. In the first case, the court concluded that inherent tribal powers can be divested through an “unspoken assumption” of federal, state, and tribal actors in the absence of an act of Congress regulating or abrogating that power, while in the second, the court concluded that tribal powers are retained absent explicit divestiture through an act of Congress.The third bucket of confusion arises from the court’s musings about the policy implications of its decisions. For example, complexities involving Indian country criminal jurisdiction long have perplexed the judiciary, with Congress doing little to better the situation (see Washington v. Yakima Indian Nation). Luckily, tribes and local governments usually choose to reach agreement amongst themselves about how to police Indian country (see United States v. Cooley). In recent years, the court has both identified jurisdictional complexity as a problem (see McGirt v. Oklahoma’s dissent arguing against a shift from state to federal criminal jurisdiction on the Creek Reservation) and attempted to resolve it by acknowledging additional state authority over Indian country crime (see Oklahoma v. Castro-Huerta). All this despite the court’s documented lack of institutional capacity to make sound policy judgments in Indian affairs.Where does this leave us? Recently, scholars such as Michelle Bryan and Kekek Stark have taken up suggestion from Justices Neil Gorsuch and Thomas that the court’s Indian law precedents arising from an “atmosphere” of colonialism be reconsidered. Undoing some of the most odious precedents of the past that are inconsistent with the modern tribal self-determination would undoubtedly clear up most of the confusion. But it is my sense that those judges most likely to express frustration with the precedents may also be frustrated with the very idea of tribal sovereignty. So we may be stuck going in circles, with a federal Indian law that is both needlessly confusing and difficult. Throughout this series, I will attempt to further unpack how those difficulties have been addressed and how that circle might be squared.