Supreme Court (5/20/19) - 3 decisions, no CVSGs, 1 new grant

3 decisions this morning, no Calls for the View of the Solicitor General, 1 new granted case.

I will comment on the Crow Tribe Treaty case below.

Above link is today’s order list.

Above is the link to the newly granted case.

Issue : Whether an order denying a motion for relief from the automatic stay is a final order under 28 U.S.C. § 158(a)(1).

The three cases decided today:

Holding : A bankruptcy debtor’s rejection of an executory contract under 11 U.S.C. §365 has the same effect as a breach of that contract outside bankruptcy; such an act thus cannot rescind rights that the contract previously granted.

Judgment : Reversed and remanded, 8-1, in an opinion by Justice Kagan on May 20, 2019. Justice Sotomayor filed a concurring opinion. Justice Gorsuch filed a dissenting opinion.

Holding : Wyoming’s statehood did not abrogate the Crow Tribe’s 1868 federal treaty right to hunt on the “unoccupied lands of the United States”; the lands of the Bighorn National Forest did not become categorically “occupied” when the forest was created.

Judgment : Vacated and remanded, 5-4, in an opinion by Justice Sotomayor on May 20, 2019. Justice Alito filed a dissenting opinion, in which Chief Justice Roberts and Justices Thomas and Kavanaugh joined.

I will join with Justice Alito’s well reasoned dissent in this case. In any event, while Herrera has won today, I believe this will only be a temporary reversal and he will ultimately lose as other issues are litigated on remand.

Holding : “Clear evidence” that the Food and Drug Administration would not have approved a change to a drug’s label – thus pre-empting a state-law failure-to-warn claim – is evidence showing that the drug manufacturer fully informed the FDA of the justifications for the warning required by state law and that the FDA, in turn, informed the drug manufacturer that the FDA would not approve a change to the drug’s label to include that warning; the question of agency disapproval is primarily one of law for a judge to decide.

Judgment : Vacated and remanded, 9-0, in an opinion by Justice Breyer on May 20, 2019. Justice Thomas filed a concurring opinion. Justice Alito filed an opinion concurring in the judgment, in which Chief Justice Roberts and Justice Kavanaugh joined.

Next Monday is a legal holiday, so the Supreme Court will be back on Tuesday, May 28 for orders and opinions, with a conference on Thursday, May 23.

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I want to make a brief observation in regards to the Herrera case.

After the snow melted in summer 2014, Shorma found four elk carcasses—three headless—just south of the Crow Reservation. (JA54-55). The location matched Herrera’s photograph exactly. (JA52-62). Working with the Crow Tribe, Shorma cited Herrera, who handed over a mounted elk head that matched the DNA of one of the carcasses. (JA117,120-21,125- 26,237).

What Herrera was engaged in was NOT subsistence hunting. He was engaged in the wanton slaughter of animals for trophies. It is hard to “subsist”, when you leave the ******* meat out in the field to rot.

I just wanted to point out, for the record, that Herrera is an ass.

Thanks. (I work for Merck)

why do people always have it out for the native americans with Treaties.

Let them hunt where they want to.


First of all, nobody has it out for anybody. I believe the legal questions at issue in this case are important and need to be decided, though I I would have decided this particular question differently.

Secondly, what this guy Herrera was doing was NOT hunting. If he had actually taken the meat and used it to feed his family or other tribal members, I would have at least had sympathy for him. That is NOT what he did. He shot four elk, decapitated three of them for trophies and left the meat of all for animals to rot. He is an ass. He is an ass whether he was a Native American, white, black, Asian, Hispanic, etc, etc, etc.

Thirdly, if any person actually “has it out” for Native Americans and wants to **** them over, the current apartheid reservation system already accomplishes that, as I addressed in this post some months back.

Let’s end Indian apartheid and integrate them into the general society as I have indicated in that post.

It is probably time we got rid of this last, obvious remnant to American empire building.


The Native American Gaming industry would fight it tooth-n-nail, it would make them subject to State law.

Lots of thoughts about the hunting case.

Media want to spin the outcome as Gorsuch suddenly veering liberal.

Meh. It’s just a case about hunting. Not some earth-shattering issue on which the liberal/conservative spectrum balances. (Ditto when Kavanaugh shifted.)

And then when I read initial synopses of the case (admittedly in the media) I thought, “Just let the Indians have their hunting privs.” Really. It’s not going to endanger any species or upset wildlife management balances.

But then to find out that the guy is actually trophy head hunting. That’s about as counter-Native as it comes. The guy wants to benefit from Native American concessions that are based on principles of respect for nature. And he’s doing stuff that precipitates the need for hunting quotas and laws in the first place.

Typical Wyoming wanting to do as they damn well please. Thankfully Gorsuch being from the 10th Circuit spanked their ass

I would note that Herrera has not won outright yet.

From the Opinion of the Court:

Second, the state trial court decided that Wyoming could regulate the exercise of the 1868 Treaty right “in the interest of conservation.” Nos. CT–2015–2687, CT–2015–2688, App. to Pet. for Cert. 39–41; see Antoine, 420 U. S., at 207. The appellate court did not reach this issue. No. 2016–242, App. to Pet. for Cert. 14, n. 3. On remand, the State may press its arguments as to why the application of state conservation regulations to Crow Tribe members exercising the 1868 Treaty right is necessary for conservation. We do not pass on the viability of those arguments today.

I think Wyoming can sustain its conservation arguments, which are an issue separate from the Treaty arguments, which would still keep Herrera’s conviction intact.

It is hard to believe that the Supreme Court would recognize that Native Americans have a right to indiscriminately slaughter big game for trophies without limit or regulation.

Good Lord. Hyperbole doesn’t suit you.

The Federal government could always revoke its treaty though. Then, it would be up to the states.

You do realize the ass killed 4 elk, took the heads of three of them and left the meat of all four animals to rot.

That is not hunting, that is being a total ■■■■■■ bag.

If he had actually taken and consumed the animals, that would have been something else, but what he did was not defensible.

Wanton waste of game is not a privilege granted to Indians under any treaty. It also goes directly against Indian values and traditions.

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That is not the question. Was it lawful hunting and SCOTUS gave us the answer. You don’t like what he did and neither do I. But the fact of the matter. Morally right or wrong doesn’t come into play. Nor should it when it comes to application of the law.


What he did was not only morally wrong, it was also legally wrong. Wanton waste of game is illegal regardless of whether the hunt itself was legal or not.

I was thinking the same thing. It would blow up the Indian Gaming Industry.

SCOTUS thinks differently and their opinion is the only one that counts.


The Supreme Court did not say that the law against wanton waste was unconstitutional, they staid the law that did not abide by the treaty allowing Indians to hunt on that ground was void. The State can still enforce the hunting laws, which includes prohibition on waste of meat.

Ok. I was wrong.