While workshopping what would become my tenure paper, Factbound and Splitless, a fairly direct critique of the certiorari process in relation to Indian law cases, at various law schools and with law professors around the nation, I became aware that former Supreme Court clerks were split on the persuasiveness of my critique (I am not a former clerk). Former clerks who were part of the so-called cert pool were usually not persuaded by my argument that the Supreme Court discriminated against tribal interests at the cert stage (and especially my secondary point that cert pool memos and clerks’ opinions had much influence on the Court), while former clerks not part of the cert pool were more interested (and in some cases overwhelmingly supportive) of my thesis. The big breakthrough for me, I think (though it wasn’t anything I could use in the article), was an admission by a former cert pool clerk who seemed skeptical of my claims as a general matter. After my talk was over most people had left the room, however, she conceded that as a clerk, she had treated tribal cert petitions as being about as important as prisoner habeas petitions. Only when the tribe (same with the prisoners) had won below did she spend additional effort on the cert pool memo because (and I am paraphrasing) tribes weren’t supposed to win.
Key to a study of certiorari is the axiomatic notion that the Court usually (though not always, to be sure) grants cert with an eye toward reversing the lower court. Some 70 percent of Supreme Court decisions are reversals, giving significant weight to this understanding. In short, persuading the Court to grant cert (for most petitioners) is more than half the battle toward prevailing, especially given that fewer than one in twenty cert petitions are granted.
Since the 1986 Term, the Supreme Court has granted review in 68 Indian law cases. [Warning, this is a preliminary study, and the numbers below are subject to change, but not significantly.]
- The Court has granted 14 out of 21 petitions filed by the United States (67 percent)
- The Court has granted 33 out of 117 petitions filed by states and state subdivisions (28 percent)
- The Court has granted 13 out of 151 petitions filed by private, non-Indian parties (8 percent)
- The Court has granted 7 out of 347 petitions filed by tribal interests (tribes and individual Indians) (2 percent) [six of these grants was accompanied by an invitation brief, an amicus brief, or other brief by the United States recommending a grant — in other words, only 1 tribal petition has been granted without the government’s consent]
In cert oppositions, the same trends hold:
- When state interests are in opposition to a cert petition, the Court granted 7 out 157 petitions (4 percent)
- When private parties are in opposition to a cert petition, the Court granted 7 out of 78 petitions (9 percent)
- When tribal interests are in opposition to a cert petition, the Court granted 45 out of 217 petitions (21 percent)
Here are the preliminary results of the new study. I divide the timeline of the study into three periods: (1) the early Rehnquist Court (1986-1993 Terms, essentially the F&S period); (2) the later Rehnquist Court (1994-2004 Terms), the period of almost perfect continuity in the membership of the Court; and (3) the Roberts Court (2005-2010 Terms).
The Early Rehnquist Court (1986-1993 Terms)
During this time (the 1986 Term through the 1993 Term), there were 165 paid cert petitions involving federal Indian law, averaging about 21 petitions a Term. The Court granted certiorari in 27 of these petitions, and in another three unpaid petitions. Of the 27 grants of paid petitions, the Court issued a GVR in five of these petitions. After the consolidation and remand of some petitions (and with one affirmed by an equally divided Court), the Court issued 17 opinions on the merits, with tribal interests winning three and losing fourteen, an 18 percent win rate.
Indians and Indian tribes filed 90 petitions, with the Court granting certiorari in only two of these cases. Opposing cert petitions, tribal interests failed to persuade the Supreme Court to deny cert in 18 cases out of 61 petitions, a success rate of 30 percent for those opposing tribal interests. It bears noting that tribal interests here includes both Indian tribes and individual Indians (unless opposing Indian tribes), and unlike the federal government, for example, tribal interests are less discriminating in the kinds of cases in which they are willing to seek certiorari. States, state subdivisions, and state officials filed 37 certiorari petitions. The Court granted certiorari in 15 cases (39 percent). The states won eight of these cases on the merits, losing three. The Court four of the 37 cert petitions filed against state interests (11 percent).
Private (non-Indian) parties filed 32 petitions, and the Court granted cert in six of those petitions (19 percent). The Court granted three out of 25 petitions filed against these private parties (12 percent). The Court granted four out of six federal cert petitions, but only granted two petitions filed against the United States (five percent).
The Later Rehnquist Court (1994-2004 Terms)
The last 11 years of the Rehnquist Court were famed for the perfect continuity of the membership of the Supreme Court, as well as a continued turn toward conservative decisions. During this period, there were 315 Indian law-related petitions (nearly 29 petitions each Term, significantly more than during the previous period), with the Court granting review in 33 of the petitions. The Court GVR’d one case, and issued 28 opinions. Tribal interests prevailed in five cases, for a success rate on the merits of 18 percent.
At the certiorari stage, tribal interests fared poorly, especially compared to state interests. Individual Indians and Indian tribes filed 159 petitions, with the Supreme Court granting five (about a three percent rate of success). Defending cert petitions, tribal interests fared much, much worse, with the Court granting cert in 23 cases out of 106 petitions filed – a 22 percent rate of success for tribal opponents. State interests filed 63 petitions and the Court granted 15 of them for a 24 percent success rate. The Court granted cert against state interests only three times out of 71 petitions (a 4 percent rate).
Private parties (non-Indians) filed 82 petitions, and succeeded on about seven percent (six grants). In opposition, private parties faced 45 petitions and the Court granted four of them (about a nine percent rate).
As usual, the federal government’s success in the certiorari stage was unparalleled. The Court granted seven of the government’s 11 petitions (64 percent), and only granted 3 out of 92 petitions filed against the government (about three percent).
The Roberts Court (2005-2010 Terms)
So far, there have been about 155 cert petitions in the five-plus Terms of the Roberts Court. The Court has granted seven petitions, one of which it GVR’d. In each of the seven grants, the party representing the tribal interest was the respondent. Tribal interests lost on the merits in each of the six decisions of the Court with a written opinion. Three other petitions are currently awaiting invitation briefs from the SG.
The Roberts Court era has only just begun, and relatively few conclusions can be drawn from the results so far. What is known is that no tribal interest has prevailed before the Roberts Court on the merits; although in a “win” of sorts this Term, one tribal respondent was able to persuade the Court to remand a granted case to the Second Circuit without reaching a decision on the merits. In the certiorari context, however, there have been stark outcomes disfavoring tribal interests.
First, the Roberts Court has granted zero cert petitions filed by tribal interests out of a total amount of (approximately) 98 petitions, including one petition filed on behalf of tribal interests by the United States. Conversely, the Roberts Court has granted all of the cert petitions filed by the United States against tribal interests. But the government has only sought review of a small handful of cases. The government declined to seek review of several other cases, including criminal cases brought under the Major Crimes Act, which likely has constitutional infirmities the United States, for now, appears unwilling to test.
Second, the Roberts Court granted review in a small number of cases petitioned by state interests, but they have declined to review the vast majority (3 grants out of 17 petitions).
Of course, the government’s biggest part in this is their participation as amicus in many cases. That data is still being processed….