By Steven M. Klepper, Esq.

In 1832, William Wirt traveled from Baltimore to argue Worcester v. Georgia before the U.S. Supreme Court. He persuaded the Court to hold, in one of Chief Justice Marshall’s greatest opinions, that the “Cherokee nation . . . is a distinct community occupying its own territory in which the laws of Georgia can have no force.”1

In 2022, the Supreme Court declared Worcester dead. It held in Oklahoma v. Castro-Huerta, 2 “the Worcester-era understanding of Indian country as separate from the State was abandoned later in the 1800s.” In dissent, Justice Gorsuch listed several times the Court had since reaffirmed Worcester. He observed that “Worcester came to be recognized as one of this Court’s finer hours . . . Where our predecessors refused to participate in one State’s unlawful power grab at the expense of the Cherokee, today’s Court accedes to another’s.”3

In most any other term, Castro-Huerta would have been big news. But it came five days after Dobbs v. Jackson Women’s Health Organization, 4 which overturned the 49-year-old abortion rights decision in Roe v. Wade.

Dobbs should not have been a surprise, even before the draft opinion leaked. President Trump promised in 2016 to appoint justices who would overturn Roe, and he delivered on that promise. Still, reminiscent of the myth of Cassandra—the priestess doomed to see the future but to be disbelieved—there was no shortage of pundits saying Roe was safe. Until it wasn’t.

Castro-Huerta shows that Dobbs is the rule, not the exception. No precedent is safe when five justices disagree with it. The doctrine of stare decisis—that courts generally stand by their decisions—is not the backstop it once was.

Soon after Dobbs, President Biden signed the Respect for Marriage Act, which creates safeguards if the Supreme Court overturns its decisions requiring states to recognize same-sex marriage or even interracial marriage.

Maryland should take similar steps to prepare for the distinct possibility that the U.S. Supreme Court will overturn key precedents on criminal procedure. For example, what if the Supreme Court overturns Miranda v. Arizona and holds that the Fifth Amendment does not require police to advise in-custody suspects of the right to remain silent and to obtain an attorney?

That possibility implicates another Latin phrase: in pari materia, or “upon the same matter.” Article 22 of the Maryland Declaration of Rights provides, for example, that “no man ought to be compelled to give evidence against himself in a criminal case.” Maryland courts have “generally interpreted Article 22 in pari materia with the Self Incrimination Clause” of the federal Fifth Amendment.5

Still, as Judge Dan Friedman has observed, it is not clear what Maryland courts mean when they use in pari materia to describe the relationship between federal and state rights. Different decisions have “used the phrase to indicate a range of relationship from as weak a relationship as arose in response to the same impetus all the way to the strong relationship position, which entails a prior commitment to automatically be given the same interpretation as the U.S. Supreme Court gives to the federal analog.”6

If precedents like Miranda fall, Maryland’s appellate courts will have to resolve what in pari materia means. Will coordinate rights vanish from the Declaration of Rights? Should a postconviction court find ineffective assistance from counsel’s failure object under a later overruled decision? These are just some of the hard questions Maryland courts will face.

I propose two modest measures to address potential obstacles to the Maryland appellate courts deciding questions of state constitutional law in the coming years.

First, the General Assembly should ease limits on certiorari jurisdiction. Like many jurisdictions, Maryland requires unsuccessful post-conviction petitioners to apply for leave to appeal. Unlike other jurisdictions, however, our high court cannot review most intermediate appellate court orders denying leave to appeal.7 To give the justices flexibility in managing their petition docket, I propose that the jurisdictional statute be amended to read: “Except as the Supreme Court may by rule provide, review by way of certiorari may not be granted by the Supreme Court in a case or proceeding in which the appellant seeks [leave to appeal].”8

Second, I am proposing to the Maryland Rules Committee an addition to the rules on preservation of objections:9 “An objection under the Constitution of the United States or federal law shall be deemed to include an objection under any analogous provision of the Maryland Constitution or state law.”

Facing an uncertain future, Marylanders should ensure their judiciary has the tools to answer the difficult questions coming our way.



1 6 Pet. 515, 520 (1832).
2 142 S. Ct. 2486, 2497 (2022).
3 Id. at 2505 (Gorsuch, J., dissenting).
4 142 S. Ct. 2228 (2022).
5 Madrid v. State, 474 Md. 273, 320 (2021).
6 Dan Friedman, Does Article 17 of the Maryland Declaration of Rights Prevent the Maryland General Assembly From Enacting Retroactive Civil Laws?, 82 Md. L. Rev. 55, 66 (2022).
7 Mahai v. State, 474 Md. 648, 667 (2021).
8 Md. Code, Cts. & Jud. Proc. § 12-202 (with proposed modifications in underline and strike-through).
9 Md. Rule 2-517, 3-517, 4-323.