Mildly interesting development in the Kickapoo case regarding the CA5’s decision to strike down the so-called Class III procedures (aka the “Seminole” fix). Kickapoo filed the cert petition, a tribal amicus brief supported the petition, but then Texas declined to respond (which is a respondent’s prerogative, especially in a case where there does not appear to be a clean circuit split). The US, the defendant in the original case, filed a brief urging the SCT to decline the case, although the brief went into detail into just how wrong the government thought the CA5 decision was.
Now the Court has asked for Texas to respond. In my limited experience with the Court’s internal dynamics, the Court might do this as a means of delaying a decision on a cert petition, but for what, in this case, I don’t know.