Supreme Court

Stanley Fish on a Justice with Empathy

Matthew L.M. Fletcher

From the NYTs:

What Kind of Judges Do We Want?

Last week I participated in a discussion of judging under the auspices of the Brennan Center for Justice. The event was held at the New York University School of Law, where an invited audience of about 80 interacted with three panelists – John Payton, head of the NAACP’s Legal Defense Fund, Burt Neuborne, professor of law at NYU and me. We were held in check by moderator Dahlia Lithwick of Slate.com and Newsweek.

The question we were there to take up was, “What kind of Supreme Court justices do we want?” The topic was set before the nomination of Sonia Sotomayor, but of course the upcoming hearings of the Judicial Committee were on everyone’s mind. And so there was a lot of talk about empathy against the background of President Obama’s praise of it and Judge Sotomayor’s now famous or infamous speculation that a wise Latina might know something an old white guy did not.

At one point moderator Lithwick asked, “Is empathy a useful term? Is it helpful?” I replied that it’s probably a bad idea to use a word that has to be explained or explained away five times a day. It’s been useful and helpful to conservative bloggers but not to either Obama or Sotomayor. Of course it’s too late to retire it; we’re stuck with it.

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Shocker! Section 5 of the Voting Rights Act Survives!

Matthew L.M. Fletcher

Here is the opinion in NAMUDNO v. Holder.

Here is the tribal amicus brief filed in the case.

Long separate opinion from Justice Thomas. Is this another case of him losing the Court?

New Article on the Mystery of CFRs and CVSGs

Matthew L.M. Fletcher

The article, “An Empirical Analysis of Supreme Court Certiorari Petition Procedures: The Call for Response and the Call for the Views of the Solicitor General”, appears in the George Mason Law Review. Here is Marcia Coyle’s coverage (thanks to Mike McBride for this):

Study shows influence of SG in high court cases granted cert

Marcia Coyle (article here, subscription required)
06-16-2009

So you’ve taken your client’s case all the way to the Supreme Court and the justices have asked the solicitor general of the United States whether they should grant review. What are your chances of a nod in your favor?

Not bad, according to an unusual study of two of the high court’s most important “information-gathering” tools — a call for the views of the solicitor general, known as a CVSG, and a call for a response, or CFR, to a petition for certiorari. The Court granted briefing on the merits in 34 percent of cases in which it called for the views of the solicitor general, a 37-time increase above the grant rate for all petitions. And, the justices follow the recommendation of the solicitor general to grant or deny a case roughly 80 percent of the time, according to the study.

David Thompson, currently a clerk to Justice Antonin Scalia, and Melanie Wachtell, policy director for the nonprofit Tobin Project, are both Stanford Law graduates who participated in the law school’s Supreme Court clinic. “We decided we were interested in writing a paper, and we felt if we were going to embark on a long paper to be published in a legal journal, we wanted it to be something that really contributed,” recalled Wachtell.

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Supreme Court Denies Cert in Border Wall Case

Matthew L.M. Fletcher

From NewsPirates (cert petition here):

border-fenceThe Supreme Court has refused to hear a challenge to the completion of the border fence between the US and Mexico, Fox News reports. Environmental groups, an Indian tribe, and the city of El Paso brought the challenge, contending that a fence will cut off access to the Rio Grande for religious, cultural, and municipal purposes. The Obama administration had encouraged the court to reject the case.
The petitioners also objected to the fence because its authorization, under then-Homeland Security chief Michael Chertoff, required Congress to waive federal, state, and local laws applying to the agency. “If allowed to stand,” the petitioners’ brief stated, the “order would constitute an unprecedented expansion of agency authority to preempt state and local law without clear congressional authority and without any oversight by any court.

Will a Justice Sotomayor Transform Indian Law?

Matthew L.M. Fletcher

Federal Indian law is at a dead end in the Supreme Court, but a new Justice – a transformative Justice – could shake the Court out of its current rut. But it’s a stretch….

Only time will tell whether President Obama’s nominee to replace Supreme Court Justice David Souter – Judge Sonia Sotomayor – will be sufficient to transform federal Indian law from its current status as a backwater of constitutional law. And there is no doubt that the Court’s view of federal Indian law and policy – and particularly Indian tribal government – is stagnant and atavistic. The Court is in need of a visionary mind to help refocus its collective mindset about Indian law and policy.

Judge Sotomayor will be only the third racial minority and the third woman on the Supreme Court. Importantly, she will be the first minority Justice with an inkling about the special property and political rights of certain minority people — in her case, the people of Puerto Rico. In some ways, American Indians and Puerto Ricans have much in common. In large measure, neither group wants complete integration into the American polity, preferring an existence on the fringes of the United States. This alone may help to shake up the mentality of the rest of the Justices, who seem a bit suprised and annoyed that Indian people don’t want to give up their separate political and ethnic identities.

The addition of one President Obama-appointed Justice is very unlikely to make much of a difference, except in a case or two over the course of years. A Justice Sotomayor may be a simple replacement for Justice Souter’s vote in Indian law cases. Souter’s votes tended to favor tribal interests in treaty and trust cases, but went against tribal interests in taxation and jurisdiction cases. Flipping Justice Souter’s vote in a tax or jurisdiction case would not have made any difference in the outcome of any major case in the last ten years, so the impact of a new Justice is muted.

However, and this is a huge if, a new Justice could force the remainder of the Justices to reconsider Indian law principles. Right now, as we opined yesterday, the Court merely ignores inconvenient Indian affairs history or Congressional intent or its own precedents. A transformative Justice could at least force the Court to address history, to address foundational principles. That might be enough to preserve the votes of Ginsburg, Breyer, and Stevens, JJ. And it might be enough to pick up a vote from Justice Kennedy, or even Justice Alito, who is as close to a blank slate on Indian law as any of the Justices. Who knows?

Review of OT 2008: Indian Law Cases in the Supreme Court

Matthew L.M. Fletcher3 Comments

It’s time for a review of what the Supreme Court did in Indian law this Term, since the Term will end in a few weeks.

Consistent with the last 15 years or so (maybe 20), the Court was very hostile to tribal interests. The Roberts Court’s view of Indian law has changed slightly from the Rehnquist Court; frankly, for tribal interests, to the worse. All of the Indian law cases decided by the Court this Term could be construed as “error correction,” cases in which the Court (usually unanimously) believed the lower court made an egregious error. This appears to be a trend in the recent years, in which the Roberts Court will only grant certiorari in cases to correct these egregious errors. The Court does not see Indian law as a dynamic area of law — Indian law cases are very easy for most of the Justices — nor are Indian law cases vehicles for examining important issues of constitutional law beyond federal Indian law.

For the Roberts Court, Indian law cases are easy for a couple reasons. First, state government interests always trump tribal interests, and every case in which tribes defeat states strongly attracts the attention of the Court. The reverse simply is not true. It is my sense that the Roberts Court is happy to rest on the fact that state sovereignty is strongly protected by the text of the Constitution, and tribal sovereignty is not. Second, the long, complicated, and important history of federal Indian law and policy is utterly unimportant to the Roberts Court. Longstanding practice, legislative history, and simple Indian affairs history does nothing to persuade a majority of the Court, with only Justice Stevens paying much attention to it.

The Court heard oral argument and issued opinions in two Indian law cases, and a third case involving Native Hawaiians.

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Arizona Snowbowl Case Cert Denial–Media Coverage

Kate Fort

As collected at How Appealing:

“Tribes lose Snowbowl battle; High court refuses to hear case on wastewater for snowmaking”: The Arizona Republic today contains an article that begins, “Would artificial snow made from purified wastewater defile a mountain Native Americans hold sacred? The U.S. Supreme Court on Monday refused to consider that question, essentially ending a five-year court battle over the future of Arizona Snowbowl on Flagstaff’s San Francisco Peaks.”

Today’s edition of The Arizona Daily Sun contains articles headlined “Snowmaking wins legal OK; The U.S. Supreme Court declines to hear a final appeal by tribes, clearing the way for Arizona Snowbowl to make snow with reclaimed wastewater“; “What next for Snowbowl? Construction could start soon; But a tribal attorney says his clients are weighing further legal action and asking federal officials to revoke the construction permit“; “Snowbowl: When is religious belief ‘substantially burdened?’“; “Snowbowl: City contract locked in“; and “Snowbowl: Snowplay tourists mostly from Phoenix.”

And The Associated Press reports that “Court steers clear of Ariz. ski resort dispute.”

Cert Denied in Arizona Snowbowl Case

Kate Fort1 Comment

The Supreme Court denied cert in the Arizona Snowbowl case today, link via SCOTUSblog.  Our materials on the case are posted here.

Arizona Snowbowl Cert Petition on Deck This Week

Matthew L.M. Fletcher1 Comment

Navajo Nation v. United States Forest Service is set for this week’s conference. From SCOTUSblog:

Docket: 08-846
Title: Navajo Nation, et al. v. United States Forest Service, et al.
Issue: Whether a governmental action cannot constitute a “substantial burden” under RFRA unless it forces individuals to choose between following the tenets of their religion and receiving a governmental benefit or coerces them by threatening civil or criminal sanctions to act contrary to their religious beliefs.

[Akin Gump and Howe and Russell represent the petitioners]

Sotomayor to be Obama’s Supreme Court Nominee

Kate Fort1 Comment

As reported on NPR, the Washington Post, and the NY Times.  TurtleTalk’s coverage of her federal Indian Law cases is here:

1. CA2 Judge Sonia Sotomayor

Judge Sotomayor has written the majority opinions in two unexceptional Indian law cases, Catskill Development v. Park Place Entertainment (2008 ) and United States v. White (2001). Catskill Development involved the authority of the National Indian Gaming Commission to review and opine on gaming management contracts, and White involved the federal prosecution of Mohawk Indians for failure to report income to the IRS. Judge Sotomayor has some Indian law exposure, but not on anything controversial.

Judge Sotomayor also voted with the majority in Bassett v. Mashantucket Pequot (2000), a case affirming the sovereign immunity of the tribe.

From the NPR story:

NPR.org, May 26, 2009 · President Obama will nominate federal appeals court judge Sonia Sotomayor to replace David Souter on the Supreme Court, NPR has learned. If confirmed, Sotomayor will become the first Hispanic to serve on the high court.

A graduate of Yale Law School, Sotomayor was nominated to the Second Circuit Court of Appeals by President Clinton. She previously served as a judge on the U.S. District Court for the Southern District of New York and in private practice in New York, specializing in intellectual property law, international litigation and commodities export trading.

Obama is expected to announce the nomination Tuesday morning. The president had said publicly he wanted a justice who combined intellect and empathy – the ability to understand the troubles of everyday Americans.

Sotomayor is a Puerto Rican. Her father, a tool-and-die worker, died when she was 9. Raised by her mother, a nurse, Sotomayor graduated summa cum laude from Princeton, then went to Yale Law School, where she served on the law journal.