Here is the opinion.
Here is the Supreme Court’s GVR order.
Previous lower court order here.
Supreme Court
New Scholarship on the Ethics of Opposing Certiorari
Aaron Tang recently (ok, in June) posted, “The Ethics of Opposing Certiorari Before the Supreme Court,” a paper he published in the Harvard Journal of Law and Public Policy.
Here is the abstract:
As the Supreme Court’s docket grows smaller and an emerging class of “Supreme Court experts” snags a greater portion of that docket with every passing year, the value associated with each rare opportunity to argue before the Court continues to rise. The rising value has driven the legal academy to pay greater attention to the arduous process of persuading the Court to take on a case through its certiorari review. Elite Supreme Court practices have focused on the certiorari process as well, because the number of merits cases to which they will have access — and substantial fees — ride on the success of the petitions for certiorari they file. The stakes have gotten so high with respect to the Court’s decisions on “cert” petitions that the popular website SCOTUSblog now has a regular “petitions to watch” column discussing certiorari petitions with a high chance of being granted and conducts live chats on mornings when the Court issues orders to provide instant analysis on newly granted cases.
Persuading the Court to grant a petition for certiorari, however, is not the only way for an advocate to land an elusive Supreme Court oral argument. After all, the attorneys who prevail at the petition for certiorari stage take on only half of the sum total of oral arguments available. The other half belongs to the attorneys who lose at the petition stage and who, as a result, will be called before the Court to defend the merits of the judgment below. This Article’s core premise is that greater attention must be paid to this set of Supreme Court oral advocates and the incentives they face. Attorneys who lose at the opposition stage may nevertheless enjoy a personal “win” in the form of an opportunity to argue at the Supreme Court. As a result, there is the potential for an ex ante ethical dilemma for attorneys tasked with opposing certiorari. This dilemma, in turn, might well have important downstream effects on clients who prevailed below and who, unlike their attorneys, would therefore prefer not to be in the Supreme Court at all. This Article analyzes the potential ethical dilemma in opposing certiorari before the Supreme Court, relying chiefly on survey responses from more than one hundred Supreme Court practitioners.
Worth a read for tribal attorneys looking for Supreme Court counsel to defend a cert petition.
Mark Killenbeck on the History of the Commerce Clause
Mark Killenbeck, author of several excellent legal histories, including one on M’Culloch v. Maryland and another on the Tenth Amendment, has posted his short history of the Interstate Commerce Clause, “A Prudent Regard to Our Own Good? The Commerce Clause, in Nation and States.”
Here is the abstract:
This lecture was delivered on May 23, 2012, as part of the Supreme Court Historical Society’s annual Leon Silverman Lecture Series. My goal was to discern what key founders envisioned when they crafted and approved the Commerce Clause and explore how it has been interpreted and applied by the Court. I take as my starting point themes struck by James Madison in his Vices of the Political system of the U. States, in which he noted a “want of concert in matters where the common interest requires it,” a flaw “strongly illustrated in the state of our commercial affairs,” to the point that “the national dignity, interest, and revenue [have] suffered from this cause.” Madison’s lament was not, however, about the need to guard against an overbearing federal government. Rather, he was concerned about the corrosive effects of a “a mistaken confidence” in “the justice, the good faith, the honor, the sound policy, of . . . several legislative assemblies” whose actions were marked by “caprice, jealousy, and diversity of opinions.” Madison also counseled against excessive reliance on interpretations grounded solely in the drafting and ratification debates, speaking of the need to “liquidate and ascertain” meaning over time, recognizing, as did Chief Justice John Marshall, that the Constitution was “intended to endure for ages to come, and consequently, to be adapted to the various crises of human affairs.” A close and careful reading of both Madison and Marshall – in particular, Marshall’s opinion for the Court in Gibbons v. Ogden (1824) – suggests, accordingly, that sharp departures from the original understanding of the Commerce Clause occurred long before Wickard v. Filburn (1942), and that there is substantial support for an expansive reading of the nature and scope of the commerce power in the words and intentions of the founders.
Expect Cert Petition in Kim Craven Appeal to Cobell Settlement Next Week
Here.
Here are the musings of Ted Frank (Kim’s former attorney) on the D.C. Circuit decision.
UPDATE: Apparently, Rob C. at ICT has the draft, and published most of the details here.
Does Michigan v. Bay Mills Create a Circuit Split with Mescalero v. New Mexico over Whether IGRA Waives Tribal Immunity?
Well, maybe, but it probably doesn’t matter because of State of Michigan’s amended complaint below.
Yesterday the Sixth Circuit held the Indian tribal immunity survives the enactment of the Indian Gaming Regulatory Act for cases in which a non-federal party with standing sues the tribe for alleged violations of the Act. The court criticized the Tenth Circuit’s holding Mescalero Apache Tribe v. New Mexico (PDF) that IGRA does waive tribal immunity:
Mescalero offers virtually no analysis in support of its contrary reading of § 2710(d)(7)(A)(ii)—a point which the State, to its credit, concedes here; and to the extent the opinion does offer any analysis, it mistakenly cites waiver cases rather than abrogation ones. We agree with the Eleventh Circuit, therefore, that Mescalero’s reasoning is “muddled” rather than persuasive.
The CA6 cited the CA11, also critical of the Tenth Circuit’s holding. In Florida v. Seminole Tribe (PDF), the court also criticized the Mescalero holding:
As an initial matter, we find that Mescalero provides no support for the State’s argument. The Mescalero panel, in discussing section 2710(d)(7)(A)(ii), claimed that a majority of courts agree that “IGRA [abrogated] tribal sovereign immunity in the narrow category of cases where compliance with IGRA’s provisions is at issue and where only declaratory or injunctive relief is sought.” 131 F.3d at 1385. In actuality, however, the cases that the panel cited in support of its claim addressed an entirely different matter, to wit: whether a tribe voluntarily waives its own sovereign immunity by engaging in gaming under IGRA. See infra part II.A.2 (discussing tribal waiver of immunity). In light of this absence of supporting authority, we find the Mescalero panel’s claim difficult to credit.
So one circuit has held that IGRA waives tribal immunity, and two circuits expressly disagree with the first circuit. Circuit split, right? Get ready for Michigan v. Bay Mills Indian Community in the Supreme Court?
Well, probably not. If the Tenth Circuit’s decision is so patently wrong (and mind you, it didn’t have the benefit of any other cases upon which to rely), it probably doesn’t matter. If confronted with the same question again, one could predict the Tenth Circuit going the other way. This is why the Supreme Court doesn’t take questions of first impression very often. They like to let things percolate in the lower courts. Whether IGRA waives tribal immunity is still percolating. The Tenth Circuit is looking like an obvious outlier decision that won’t be repeated. I’d guess, if anyone made the effort, that a Supreme Court cert petition would be denied.
Arizona Cert Petition in Voter ID/Citizenship Case
Here is the cert petition and the case is now captioned Arizona v. Inter Tribal Council of Arizona:
Question Presented:
Did the court of appeals err 1) in creating a new, heightened preemption test under Article I, Section 4, Clause 1 of the U.S. Constitution (“the Elections Clause”) that is contrary to this Court’s authority and conflicts with other circuit court decisions, and 2) in holding that under that test the National Voter Registration Act preempts an Arizona law that requests persons who are registering to vote to show evidence that they are eligible to vote?
Lower court opinion here.
Cert Opposition Brief in Suit against Puyallup Police
US v. Samish — SCOTUSblog Petition of the Day
Here.
Public Opinion and Judicial Ideology
Interesting research on how public opinion and judicial ideology clash. This new paper suggests that the Roberts Court, while pretty conservative, may still be less conservative than the American public. That’s pretty interesting stuff.
I’d like to see more information about Supreme Court decisions in Indian law cases and public opinion. For example, how do people really feel about Indian gaming? Are they “gaming” people or are they “gambling” people, like Justice Scalia?
The questions should pertain to specific cases, I think, to be useful. How does the public feel about KG Urban’s challenge to the Massachusetts gaming law? Or about tribal criminal jurisdiction over serial DV and sex offenders?
Maybe the SCT would deny this information is valuable, but I think it would be terribly helpful.
Thanks to the Monkey Cage crew.
Supreme Court Denies Cert in Corboy v. Louie (Native Hawaiian-Related Petition)
Here, page 11 of the order list.
The Court had CVSG’d this petition, and the SG recommended denial.
Turtle Talk 
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