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In a recent case dealing with sovereign immunity for Native American tribes, Washington Supreme Court Justice Sal Munguia issued a rare concurrence. Based on U.S. Supreme Court precedent, the Stillaguamish Tribe agreed to a state high court legal ruling that exempts them from lawsuits over land ownership. “But I disagree,” he wrote Flying T Ranch v. Stillaguamish“from the racial discrimination embedded in the federal case law applicable to this dispute.”
Munguia’s agreement reveals racist stereotypes rooted in the landmark U.S. Supreme Court decision cited by the Washington high court. In these 19th-century cases, judges said Native Americans had a “low level of organized society” and a “savage nature.” Munguia argued that these incidents are based on racist assumptions.
Mr. Munguia’s concurrence was surprising not only because it pointed to a bias embedded in long-held legal precedent, but also because of how it relates to his role as a state court judge in the federal system. Munguia acknowledged that the Washington Supreme Court is obligated to follow the precedent of the U.S. Supreme Court. But he insisted that “we have no obligation to remain silent about the underlying racism and bigotry that is woven into the fabric of these opinions.” He called on his colleagues to “say clearly, loudly and unequivocally that this is wrong.”
Although the cases Munguia denounces are more than a century old, state judges have also harshly criticized some modern-day U.S. Supreme Court decisions based on their own illegitimate foundations. Last month, for example, Hawaii Supreme Court Justice Todd Eddins noted that recent U.S. Supreme Court decisions involving shadow dockets reflect “a disdain for the federal judiciary’s fact-finders, the district courts, which throws judges under the bus.” Looking at the High Court’s Establishment Clause precedent, Eddins argued as follows: Hilo Bay Marina v. Hawaii They agree that the justices “repackaged and manipulated facts to achieve desired outcomes” and imposed policy priorities through “unprincipled legalism.”
State Supreme Court justices have a unique institutional stance when it comes to criticizing the U.S. Supreme Court. Like other judges, they can talk about the reality of having to apply questionable precedents, but because they sit outside the federal judicial hierarchy, lower court judges often bite their tongues. Notably, federal judges have increasingly vocally criticized the courts’ use of shadow dockets in cases involving the Trump administration, which is largely done anonymously, itself highly unusual.
State Supreme Court justices are also in a special position, as they are the ultimate arbiters of state law interpretation. This means that they can serve as an alternative model to the courts for how to interpret, apply, and address state constitutions, laws, and precedents within their own territory. For example, Eddins said he treats recent Supreme Court precedents as “white noise” when it comes to interpreting state constitutions. And, as Munguia points out, the Washington Supreme Court has previously struck down some of its own earlier decisions that “ignored the rights of Native Americans and their treaty rights.”
Historically, controversial Supreme Court decisions have not been the end of conversations about the meaning of the U.S. Constitution and other federal laws. case like Lochner vs. New YorkThis law, which struck down worker protections as inconsistent with the right to freedom of contract, was only the beginning of a dialogue, and sometimes conflict, between the Supreme Court and Congress, the states, and other institutional actors. Today’s state court opinion may signal a new generation of controversy.
Alicia Bannon is the editor-in-chief state court report. She is also the director of justice programs at the Brennan Center for Justice.
Recommended quote: Alicia Bannon State judges target U.S. Supreme CourtSᴛᴀᴛᴇ Cᴏᴜʀᴛ Rᴇᴘᴏʀᴛ (October 24, 2025), https://statecourtreport.org/our-work/analysis-opinion/state-judges-denounce-prejudice-precedents
