Earlier this year, the Oneida Indian Nation successfully persuaded the Supreme Court to GVR a case that most observers would agree the Nation would have a difficult time winning — by informing the Court of changed circumstances, initiated by the Nation, that effectively mooted the case. This is all detailed in Kaighn Smith’s new article in this month’s edition of the Federal Lawyer.
Right now it is rare for the Supreme Court to grant a case and then change its mind. Occasionally, the parties force the Court to dismiss a granted petition by agreeing to settle the matter or if one of the parties walks on (in cases like criminal cases).
Tribal advocates in recent years have openly feared the Supreme Court, which appears very hostile to their clients’ interests (and the stats are in strong agreement). The Oneida effort to moot the case in light of a likely bad outcome raises a few other questions about strategic behavior before the Court.
Given how many members of the Supreme Court appear to strongly articulate (“tip”?) their views and positions during oral argument (witness yesterday’s argument in the massive WalMart class action employment discrimination case, which the plaintiffs now must realize will crash and burn given the overt hostility of the Court), could a tribal party wait and see how oral argument goes — where they very possibly will learn whether or not they have a real chance of prevailing — and then seek a way to dismiss the action? The recent oral argument in Tohono O’odham Nation offered little in the way of clear tipping, but another argument (in Jicarilla Apache Nation) will afford the tribal interests an opportunity to analyze their chances (and count votes).
Of course, once this is done (and already has been done) a few times, the Court will catch on. Then the Court will perhaps begin to react with its own form of strategic behavior.
Ultimately, the Supreme Court’s (Justice Thomas excepted, of course) tipping of its likely decision during oral argument in some, but not all cases, encourages such behavior.
Turtle Talk 