State Judges Target the U.S. Supreme Court
A justice in Washington concurred in a recent opinion but dissented “from the racism embedded in the federal case law that applies to this dispute.”
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In a recent case addressing sovereign immunity for Native American tribes, Washington Supreme Court Justice Sal Mungia issued an unusual concurrence: He agreed with the state high court’s legal ruling that, under U.S. Supreme Court precedent, the Stillaguamish tribe is immune from a lawsuit over land ownership. “But I dissent,” he wrote in Flying T Ranch v. Stillaguamish, “from the racism embedded in the federal case law that applies to this dispute.”
Mungia’s concurrence lays out the racist stereotypes rooted in the landmark U.S. Supreme Court rulings cited by the Washington high court. In these 19th-century cases, justices described Native Americans as “low in the grade of organized society” and with a “savage nature.” These cases, Mungia argued, were based on racist premises.
Mungia’s concurrence was striking not only for pointing out the prejudices baked into long-standing precedents, but also for how it engaged with his role as a state court judge in our federal system. Mungia acknowledged that the Washington Supreme Court is bound to follow U.S. Supreme Court precedents. However, “we are not bound to stay silent as to the underlying racism and prejudices that are woven into the very fabric of those opinions,” he argued. He called on his colleagues to “clearly, loudly, and unequivocally state that was ‘wrong.’”
While the cases Mungia condemns are more than a century old, state judges have also sharply critiqued some contemporary U.S. Supreme Court decisions as resting on their own illegitimate bases. Last month, for example, Justice Todd Eddins of the Hawaii Supreme Court pointed to recent U.S. Supreme Court rulings, including on its shadow docket, as reflecting a “throw-judges-under-the-bus disdain for district courts, the fact-finders of the federal judiciary.” Looking at the high court’s Establishment Clause jurisprudence, Eddins argued in his Hilo Bay Marina v. Hawaii concurrence that the justices had “repackaged and whitewashed facts to achieve a desired outcome” and imposed policy preferences by “unprincipled fiat.”
When it comes to critiquing the U.S. Supreme Court, state supreme court justices enjoy a unique institutional posture: Like all judges, they can speak to the reality of having to apply problematic precedents, but they also sit outside the federal judicial hierarchy that often leads lower court judges to bite their tongues. Notably, while federal judges have increasingly spoken up to criticize the Court’s use of the shadow docket in litigation involving the Trump administration — which is highly unusual in itself — they’ve largely done so anonymously.
State supreme court justices are also in a special position because they sit atop state judiciaries as the ultimate word in interpreting state laws. This means that within their own sphere, they can model an alternative to the Court in how they interpret, apply, and grapple with their states’ constitutions, laws, and precedents. Eddins, for example, observed that when it comes to interpreting his state’s constitution, he treats recent Supreme Court jurisprudence as “white noise.” And as Mungia notes, the Washington Supreme Court has previously repudiated some of its own prior decisions that “disregarded the rights of Native Americans and their treaty rights.”
Historically, controversial Supreme Court decisions weren’t the end of the conversation about the meaning of the U.S. Constitution and other federal laws. Cases like Lochner v. New York, which invalidated labor protections as inconsistent with the right to freedom of contract, were just the beginning of dialogue — and sometimes conflict, between the Supreme Court and Congress, the states, and other institutional actors. Today’s state court opinions may signal a new generation of contestation.
Alicia Bannon is editor in chief for State Court Report. She is also director of the Judiciary Program at the Brennan Center for Justice.
Suggested Citation: Alicia Bannon, State Judges Target the U.S. Supreme Court, Sᴛᴀᴛᴇ Cᴏᴜʀᴛ Rᴇᴘᴏʀᴛ(Oct. 24, 2025), https://statecourtreport.org/our-work/analysis-opinion/state-judges-denounce-prejudice-precedents
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