“Factbound and Splitless” Talk

Here’s the abstract for my talk tomorrow at U-M Law School, “Factbound and Splitless: The Impact of the Certiorari Process on Federal Indian Law.”

The process by which the Supreme Court reviews petitions for writs of certiorari is intended to parse through the thousands of petitions to pick out the most important cases for the Court to decide. These include cases in which there is a split of authority, cases in which a lower court has committed a gross error, or cases in which there is a critical constitutional issue at stake. Cases in which there is no split, cases that will affect only a few people, cases involving simple error correction, or cases involving an unimportant issue are unlikely to be heard by the Court.

Since the 1980s, more and more Justices have resorted to a pool of law clerks for a write-up of each cert petition that includes a recommendation of whether or not the Court should grant cert using these factors. With the release of Justice Blackmun’s papers, the cert pool petitions from the docket years 1986 to 1993 are available for study. The views of Supreme Court clerks in the cert pool memos are often the only written documentation of the Court’s views of the vast majority of petitions that are denied.

The certiorari process creates a structural barrier to the fair adjudication of federal Indian law cases. Because over 80 percent of Indian law cases arise in three circuits, few circuit splits arise, rendering most petitions “splitless.” Moreover, since Indian law cases are often sui generis, they are labeled “factbound.” Most importantly, Supreme Court clerks do not find Indian law cases to be important in regards to the legal issues in dispute, except when the petitioner is a state or local government opposing a tribal interest such as a tribe or a tribal member.

What this means is that the clerks almost never recommend a grant when the petitioner is an Indian tribe or an Indian because the petition is “splitless,” “factbound,” or just unimportant. Conversely, when a state or local government petitions, the Court grants the petition around 75 percent of the time, regardless of whether any split exists. Perhaps this is part of the explanation for why tribal interests have lost 75 percent of their cases before the Court since 1987.

The classic case is a treaty rights case brought by a tribe. If the tribe loses below, the clerks will never find a split in authority because the treaty is unique, making the case sui generis. And Supreme Court clerks almost never find the petitions of Indians and Indian tribes to be important enough to be certworthy. But if the tribe wins below, the opponents usually are state governments, whose cert petitions are viewed favorably by the clerks.

This paper argues, as have occasional Supreme Court clerks, that the Court should recognize the special relationship that exists between the United States and Indian tribes in the certiorari process. The Court should also recognize the structural inequity of the certiorari process in the context of federal Indian law. Both of these changes could be accomplished through an amendment to Supreme Court Rule 10, which articulates the Court’s factors in considering certiorari petitions. Either the Court should grant more petitions filed by tribal interests or deny more petitions filed by tribal opponents.

Hope you can make it. The talk begins at 12:20 in Room 150 in the law school. Lunch is available. The talk is sponsored by the U-M NALSA and the Michigan Journal of Race & Law.