The Constitutional Accountability Center issued a report (here is the press release, and here is the report) suggesting that the Roberts Court has dramatically altered the outcomes of corporate and business interests in the Supreme Court. The press release notes: “We found that (1) the U.S. Chamber of Commerce won 68% of the cases in which it had participated since Justice Samuel Alito joined the Court in January 2006….” Compare that to the five years preceding Justice Scalia’s appointment to the Court: “During this earlier five-year period, the Chamber lost more cases than it won (winning 15 of 35 cases, a win percentage of 43%) and there was no similar division along ideological blocs on the Court in business cases.”
Seems like a big deal, but the stats in Indian law blow that away (of course, there are far few cases).
In the last five Terms of the Supreme Court, tribal interests have won zero cases, out of just three (at least two more on are on the way this Term). But since Justice Scalia joined the Court, tribal interests have won 14 out of 51 cases, a “win” percentage of 27%.
From the beginning of the modern era of Indian law (1959) until Justice Scalia joined the bench, tribal interests “won” 47 out of 80 cases, for a “win” rate of 59%. Seems like tribal interests are feeling a much bigger negative impact than business interests are feeling a positive impact.
We think this goes to a greater invisibility of American Indian law, Indian tribes, and Indian people, present in most aspects of law and policy. What’s changed? Are Indian tribes suddenly less competent to govern? Hardly, and in fact they are stronger than since before the Founding of the United States. Indian law profs have been decrying the rise of open and notorious judicial policymaking in Indian law for two decades, apparently to little effect or interest in the mainstream.
Turtle Talk 
The “contortionist” rulings of the Supreme Court in Indian Cases will come back to haunt the average American. The twisting of Constitutional Law to suit a desired outcome is dangerous, even if perpetrated on a minoirty of the population. The rising tide of “facism” in the U.S. coincides with the cosolidation of wealth and political power in the hands of a few. Those few, of course, are the who’s who of the business world in the U.S. To hold onto wealth and power, the rights of the “have nots” have to be diminished. Cohen was right. The “poisoned” air created by the Constitutionally “twisted” decisions will leak out and spill over into the rest of jurisprudence. The basis of “presedence” ditates that it will.
What do you mean by the following- “Are Indian tribes suddenly less competent to govern? Hardly, and in fact they are stronger than since before the Founding of the United States.” Are you saying that tribes are stronger than they were prior to 1776 or are you saying that tribes are as strong a they were prior to 1776?
harold, your words creep me out, in that they are true. then perhaps for us the ancient roman terms “terra nullius” and “terra incognita”have a different “story” to tell of the foundation of the “United States” the “foundingfathers” did not include “Indians” in ameriKan dream.?? the terms; Discovery/conquered/christian-protestant ascendency must be repudiated. authors H.Zinn&Theodore White et al, have a new slant on U.S.(tjefferson,ajackson,jcalhoun,& those of the same ILK: vexatious/obnoxius arrogant superiorty. absolute power corrupts absolutely.!
Jimmy, the founding-fathers did not intend to let Indians govern themselves. Our tribal councils have become Oligarchys and are dispossessing tribal members of their land. Are Indians strong and able to govern themselves? Yes, but
so-called “Sovereignty” was never ment to exist for
American “Indians”; i.e. an exclave within an enclave. Several years ago the Yakama tribe tried in vain to enforce so-called sovereignty to protect water rights, it did not happen, federal agents came in and laid down the “law”
This is a strange blog post. There’s a perfectly reasonable explanation for the shift, which is that Indian law was for a very long while a doctrinal mess that the Supreme Court simply refused to tackle because it was such a unique and basically incongruous area of “constitutional” law. The interactions between treaties, statutes, administrative actions, and horribly-reasoned lower court opinions — and the reliance interests related to all — made it impenetrable and the SCOTUS was far more inclined to shrug its shoulders.
Then, from 1982 to 1987, four important things happened: an Arizonan named Rehnquist who knew something about Indian law became Chief; another Arizonan named O’Connor joined the Court; a very raw-smart lawyer’s lawyer named Scalia joined the Court; and a 9th Circuit judge who had already been working with Indian law named Kennedy joined. Suddenly there was a core of Justices who were more interested in the subject matter and they began to tackle the mess that had developed over time. Greater scrutiny meant greater care with the law and less policy-driven applications of sentiment.
This is going to continue. Kagan is no idiot and isn’t half as policy-driven as Breyer-Sotomayor-Ginsburg. More scrutiny = more law.
man what planet are you talking about henry?The rehnquisiter despised having to deal w/Indian cases, Scalia scorns Indians also. Since Johnson v M’Intosh,1823 Indian title to their land and all it contains has been farce, continues to the instant case of “Cobell” the Grant presidency instituted “Indian ring” you seem to be talking “legal speak” or know little of so-called “Indian” law.