Turtle Talk

Readers of Turtle Talk may wonder why we link to SCOTUSblog so frequently.

We do so for various reasons, but always with trepidation. First, without doubt, SCOTUSblog is the most widely-read blog on the Supreme Court in the known universe. The authors tend to be experienced Supreme Court practitioners and observers, and they are usually non-partisan in their commentaries. As a result, recent chatter on the internet suggests that current Supreme Court clerks, when at a loss to determine what cases are certworthy, look to SCOTUSblog for guidance (and possible other blogs). We think it is critically important that Indian Country knows when SCOTUSblog is paying attention to a particular petition. It is more likely than not that someone in the Supreme Court’s chambers is paying attention, too.

Second, on some occasions, we have posted a link to SCOTUSblog commentary with critical commentary of our own. My experience with studying cert pool memos indicated to me that, on a few occasions, the clerks simply get the law wrong. Many times, for financial or strategic reasons, tribal interests who are respondents to cert petitions do not file an opposition to the cert petition (or are limited in their capacity to raise all the relevant arguments). We don’t know if Turtle Talk is read by Supreme Court clerks, but if it is, there will at least be an informal, occasional cert opposition out there.

Finally, note that we link to SCOTUSblog with some trepidation. We recognize that repeating the SCOTUSblog might, to some, smack of adding importance to a particular petition. We specifically do not celebrate the various petitions to watch or petitions of the day. We simply note them, and occasionally question why they might be listed. It’s all guesswork, and we may be walking a tightrope we cannot see or predict.

That said, SCOTUSblog gives us a chance to highlight how the Supreme Court’s views on certiorari in Indian law cases are thoroughly skewed against tribal interests. We repeatedly state relevant statistics related to the factors seem to motivate the Court in Indian law (see “Factbound and Splitless“), and those factors appear in plain view in SCOTUSblog’s petitions to watch.

Those stats are, of course: (1) the United States’ petitions are granted about 2/3 of the time, or more; (2) petitions by states and their subdivisions against tribes are granted about 1/3 of the time; (3) petitions by tribes are almost never granted. The factors are that states’ interests trump tribal interests, and tribal interests are uniformly disfavored by the Court. As one former clerk said to me, tribal petitions are treated like habeas petitions — since the states below are not supposed to lose, the clerks only give attention to petitions from states (and not tribes, or prisoners).

Any comments are welcome.