The Supreme Court is catching a lot of flak for figuratively punting on the census question issue in Department of Commerce v. New York and the gerrymandering issue in Rucho v. Common Cause. But there was one case that the justices actually punted to the next term.
The Court passed on deciding Carpenter v. Murphy, restoring it to their calendar for reargument. So, what's going on?
The essential question is whether the State of Oklahoma has criminal jurisdiction over Native Americans on land that was once set aside as a reservation. The Tenth Circuit previously ruled that the land at issue, where an alleged murder took place, still belongs to the Muscogee (Creek) Nation rather than the state, meaning tribal police should've handled the investigation and prosecution. But the big problem, at least for the Court, is the amount of land at issue -- some 3.25 million acres. As Ronald Mann broke down on SCOTUSBlog:
"On the one hand, the state argues that a decision in favor of the defendant, Patrick Murphy, would leave a prosecutorial void over an immense area, threatening the validity of a large number of past convictions and forcing a wholesale development of new institutions for prosecutions by federal and Native American authorities. On the other hand, a ruling for the state could require the justices to replace a settled "clear-statement" regime for the disestablishment of Native American reservations with a multi-factored arrangement in which authority over the land might have passed from the tribes to the state at an undefined date based on a loose amalgam of historical practice."
Even after hearing oral arguments in November, and requesting and receiving supplemental briefing in December and January, the justices still couldn't come to a decision.
Because Justice Neil Gorsuch was serving on the Tenth Circuit when it made its decision two years ago, he has been recused, and many speculated that the Court would tie 4-4 on the matter and leave the lower court's ruling in place. But there were also rumors, cited by Splinter, that Justice John Roberts was attempting to gain support for a 5-3 decision in Oklahoma's favor, with the help of Justice Brett Kavanaugh.
All of that guessing will begin anew with another round of arguments this fall, but it's hard to imagine the Court kicking the proverbial can any farther down the road.