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J. Sotomayor has majority opinion in Hererra v. Wyoming. #SCOTUS splits 5-4, w/ Gorsuch in majority. Is this the first 5-4 that RBG assigned to Sotomayor? supremecourt.gov/opinions/18pdf… 
2/ And you don't see that caption very often: ON WRIT OF CERTIORARI TO THE DISTRICT COURT OFWYOMING, SHERIDAN COUNTY
3/ The majority opinion holds that Mille Lacs Minnesota v. Mille Lacs Band of Chippewa Indians, 526 U.S. 172 (1999) overruled, in part, Ward v. Race Horse (1896). (J. Sotomayor notes that Mille Lacs was 5-4, with Ginsburg and Breyer in the majority).
5/ Later, J. Sotomayor notes that a "repudiated" (not overruled) decision creates an exception to the usual rules concerning preclusion.
6/ J. Sotomayor continues to apply treat-originalism, with a citation to a (fairly) contemporaneous dictionary from 1889.
7/ J. Alito dissent contends that on remand, the Tribe will not be able to benefit from bc of issue preclusion. He argues that the majority's interpretation of the treaty will be "much wasted ink."
8/ Specifically, J. Alito contends #SCOTUS has never held that "a prior judgment lacked preclusive effect" when there was a "change in law"
9/ The dissent also questions whether "Mille Lacs effectively overruled Race Horse." (J. Thomas, who joined the Mille Lacs dissent, agreed with Rehnquist that there was a sub silentio overruling)
10/ J. Alito also faults Second Restatement of Judgments, which "reversed" the First Restatement based on "scant explanation," and made a "prescriptive rather than a descriptive approach." Here, Restatement "loses much of its value" (@AmLawInst annual meeting starts today!)
11/ In Kansas v. Nebraska (2015), J. Scalia also faulted the prescriptive Restatement (Third) of Restitution: "And it cannot safely be assumed, with- out further inquiry, that a Restatement provision describes rather than revises current law." joshblackman.com/blog/2015/02/2…
12/ What a 5-4 decision! The majority asserts that a 123-yr old decision was "repudiated" in 1999, which created an exception to issue preclusion, so that the Court could interpret the terms of an 1868 treaty. The dissent calls the majority opinion a "pointless disquisition"
13/ At the outset of this thread, I noted that RBG assigned the 5-4 opinion to J. Sotomayor. I can't think of any other 5-4 opinions by Sotomayor. I'm surprised RBG didn't assign the majority to Gorsuch, like she assigned Apple v. Pepper to Kavanaugh. Gorsuch must've been onboard
