Storytelling is one of our oldest pastimes because it is central to the human experience. Few can resist the emotional potency of a good narrative, not even the Supreme Court. Sometimes these stories just happen to intersect with the justices’ preexisting priorities, as they did in Kennedy v. Bremerton School District. Sometimes, as in Oklahoma v. Castro-Huerta, they strike the right nerve with the right number of justices. And sometimes they don’t hold up to scrutiny at all, with significant implications for the law.
Kennedy is better known as “that praying high school football coach case,” and for good reason. There are some details that are widely agreed upon: Joseph Kennedy was a football coach at a public high school in Washington state. He prayed on the football field after games. The school district told him to stop. He did not stop. The school did not renew his contract. From there, however, the parties involved differ on whether Kennedy was the victim of an overzealous school district that feared litigation, whether he was insubordinate, or whether he had (consciously or not) used his position to influence or even coerce his students on religious grounds.
Two parts of the First Amendment direct how the government, of which Kennedy was once a part, should interact with religion. The Establishment Clause forbids the formal creation of a state-run church like the Church of England and, under the Supreme Court’s precedents, also bans informal forms of preferential treatment for specific faiths and denominations. The Free Exercise Clause prohibits the government from disfavoring unpopular religious beliefs, traditions, practices, and so on. Taken together, the two clauses try to shield the New World from the religiously driven strife that had consumed both England and continental Europe in the two centuries preceding American independence.
To the conservative justices, this was a dispute between school district administrators who overinterpreted the Establishment Clause and a high school football coach who faced retaliation and unemployment for the simple act of prayer. “The expression at issue in this case is unlike that in any of our prior cases involving the free-speech rights of public employees,” Alito wrote in a concurring opinion. “[Kennedy]’s expression occurred while at work but during a time when a brief lull in his duties apparently gave him a few free moments to engage in private activities. When he engaged in this expression, he acted in a purely private capacity.”
The court’s liberals read things differently. “To the degree the Court portrays petitioner Joseph Kennedy’s prayers as private and quiet, it misconstrues the facts,” Sotomayor pointedly noted. “The record reveals that Kennedy had a longstanding practice of conducting demonstrative prayers on the 50-yard line of the football field. Kennedy consistently invited others to join his prayers and for years led student athletes in prayer at the same time and location. The Court ignores this history.” She included a photo of Kennedy leading his students in prayer that would appear to undercut the claims that it took place in a private moment.
If anything, Sotomayor may have understated things. When the case went through the Ninth Circuit Court of Appeals, Judge Milan Smith chastised some of his more conservative colleagues for giving an incomplete account of how Kennedy’s dispute had unfolded. “Kennedy engaged in private prayer for several years,” he wrote. “But when BSD learned that he had begun leading students in pre-game locker room prayers and giving overtly religious speeches on the field post-game, it directed him to stop that practice.” Kennedy responded by turning himself into a minor cause célèbre.
“He advertised in the area’s largest newspaper, and local and national TV stations, that he intended to defy BSD’s instructions not to publicly pray with his players while still on duty even though he said he might lose his job as a result,” Smith wrote. “As he said he would, Kennedy prayed out loud in the middle of the football field immediately after the conclusion of the first game after his lawyer’s letter was sent, surrounded by players, members of the opposing team, parents, a local politician, and members of the news media with television cameras recording the event, all of whom had been advised of Kennedy’s intended actions through the local news and social media.”
Against this disruptive backdrop, Smith noted that at least one student athlete, who identified as an atheist, said that he participated in the prayers only out of fear that he “would get less playing time if he declined.” That would represent the kind of implicit coercion that the court recognized would be possible in Lee v. Weisman, a 1992 case where the justices ruled against the use of clergy-led prayers in a public high school’s graduation event as an Establishment Clause violation.
Some justices in the majority had even previously acknowledged that Kennedy had underlying factual issues. In 2019, when Kennedy first asked the court to intervene, four of the court’s conservatives, led by Alito, issued a statement explaining that they had voted against hearing the case because “important unresolved factual questions would make it very difficult if not impossible at this stage to decide the free speech question that the petition asks us to review.” By the time it reached them again last year, the justices apparently felt satisfied enough that they could take it up.
Why the high level of interest by the court? Kennedy’s narrative may have been a compelling one for a group of conservative justices who are extraordinarily receptive to religious freedom claims. And some of them had expressed a strong desire to revisit the court’s Establishment Clause precedents, especially Lemon v. Kurtzman, which laid out an “entanglement test” for official endorsements of religion. In a 2019 case involving a giant memorial cross maintained on public land in a Maryland town, Thomas referred to the Lemon test as “long-discredited,” while Alito and Kavanaugh both sought to minimize and narrow it in favor of a history-and-tradition test. The court’s ruling in Kennedy allowed them to finish the job, even if the facts were far from unchallenged.
An even more troubling instance of the court’s susceptibility to certain narratives came in Oklahoma v. Castro-Huerta. I’ve written about this case and the ruling itself at some length, so I will avoid recounting all of the circumstances that led to it. In short, the Supreme Court recognized in the 2020 decision McGirt v. Oklahoma that roughly half of that state is still Indian country because Congress had never explicitly disestablished the reservations there. One of McGirt’s most consequential outcomes was in criminal jurisdiction. A basic precept of Indian criminal law is that only the tribes and the federal government, not the states, can prosecute crimes involving tribal members on tribal lands.
This landmark victory for tribal sovereignty did not sit well with Oklahoma Governor Kevin Stitt and other state leaders. They began mounting an all-out campaign to overturn or at least curtail McGirt, citing the purported chaos wrought by the court’s ruling. It helped their cause that the decision came from a 5–4 vote in which the court’s liberal wing, which had four members at the time, joined with Gorsuch. By the time the court agreed to hear Castro-Huerta in January, Ruth Bader Ginsburg had died and Justice Amy Coney Barrett had taken her place.
The basic dispute in Castro-Huerta was whether federal law gave Oklahoma concurrent jurisdiction over some crimes within the reservations, meaning that it had an equal right to prosecute certain cases alongside federal and tribal authorities. The case’s namesake defendant had been prosecuted and convicted by Oklahoma for child endangerment, then retried and reconvicted after McGirt by the federal government. Tribal governments and the Justice Department strenuously argued that the answer was no, arguing that Congress had clearly intended for the federal government and the tribes to have exclusive jurisdiction over crimes in Indian country if an Indian victim or perpetrator were involved.
One big problem for Oklahoma at the outset of this case was that two centuries of practice and precedent suggest that concurrent jurisdiction doesn’t exist. The state cobbled together a patchwork of offhand references in past Supreme Court decisions, as well as a strained reading of the relevant federal statute, to claim a power that it had explicitly disclaimed two years earlier in the McGirt litigation. One big problem for the tribes is that Kavanaugh, the other McGirt dissenters, and Barrett accepted Oklahoma’s far-fetched interpretation as law and ruled in favor of the state. The result, as I noted the other week, is a disaster for tribal sovereignty—not just in Oklahoma, but throughout the United States.
How did Oklahoma win this time? A crucial factor, as in Kennedy, appears to have been the potent narrative it offered to a sympathetic Supreme Court majority. The state argued that the McGirt ruling was “calamitous and worsening by the day” in its petition for review earlier this year. “The decision in McGirt now drives thousands of crime victims to seek justice from federal and tribal prosecutors whose offices never before handled those demands. Numerous crimes are going uninvestigated and unprosecuted, endangering public safety. Federal district courts in Oklahoma are completely overwhelmed.” Oklahoma also warned that the ruling had “[jeopardized] hundreds of millions of dollars in state tax revenue and call[ed] into question the state’s regulatory authority over myriad issues within its own borders.”
The court passed on the state’s invitation to consider overruling McGirt, which would have been almost unprecedented in the modern age for a ruling that was less than two years old. But the claims of widespread havoc appear to have influenced the majority to rule in Oklahoma’s favor. After describing the impact of McGirt on the state’s criminal justice system in dire times, Kavanaugh wrote that the court had agreed to hear the case “in light of the sudden significance of this jurisdictional question for public safety and the criminal justice system in Oklahoma.”
But that narrative is not as clean-cut as the Castro-Huerta majority made it sound. While no one disputes that McGirt had a dramatic effect on criminal cases in Oklahoma, there is ample evidence that some of the state’s claims are overwrought at best and highly misleading at worst. The Atlantic’s Rebecca Nagle and Allison Herrera found little evidence to support some of the state’s data and, in some cases, found that it significantly inflated figures on how many prisoners would be released and how many cases would go unprosecuted. In his fiery dissent, Gorsuch also lambasted the majority for its “dystopian tale” about the post-McGirt fallout and pointed to numerous statements by tribal and federal authorities that they have now adjusted to the new status quo.
Court watchers have tried to explain why Gorsuch is so favorable toward tribal-sovereignty claims. Some, including myself, have attributed it to his service on the Tenth Circuit Court of Appeals, which hears more tribal cases than many other federal appeals courts. After his dissent in Castro-Huerta, it may be more accurate to say that Gorsuch simply thinks that Native Americans are, for lack of a better word, real—that the tribes are legitimate participants in the American constitutional system, with rights to defend and powers to exercise, and not merely a bygone relic of the nineteenth century. That basic level of respect is somewhat lacking in Roberts’s dissent in McGirt or Kavanaugh’s majority opinion in Castro-Huerta, where tribal sovereignty is treated as a thorny obstacle to states’ legitimate interests.
This won’t be the last time that the court is tempted by a litigant’s narrative. Two cases slated for consideration next term could test the limits of what the justices will buy to deliver a certain ruling. In 303 Creative v. Elenis, the court will consider the plea of a Christian website designer who claimed that Colorado’s anti-discrimination law would force her to create wedding websites for same-sex couples. (As I noted before, the plaintiff did not actually create wedding websites before her lawsuit and her claims of injury are purely hypothetical.) If the Supreme Court rules in her favor, it could give a free-speech justification for companies to exclude gay and transgender Americans from public accommodations on religious grounds.
Tribal sovereignty will also be back at the Supreme Court in a case that could match Castro-Huerta in significance. In Brackeen v. Haaland, the court will weigh in on the constitutionality of the Indian Child Welfare Act, which generally tries to ensure that Native children are sent to Native families through the adoption system. An unorthodox federal judge struck down the ICWA a few years ago on extremely dubious grounds, and the Fifth Circuit Court of Appeals made a dog’s breakfast of the statute when it decided the case last year. While it was almost inevitable that the justices would review the Fifth Circuit’s handiwork, the ruling in Castro-Huerta may undercut hopes that the justices will restore a four-decade status quo and respect the tribes’ strong interests here. With the plaintiffs claiming that the law unjustly keeps non-Native families from raising Native children, the Supreme Court may again find itself tempted by a narrative that doesn’t ultimately hold up to scrutiny.
