Supreme Court

Carcieri Oral Argument Impasse Continues….

Matthew L.M. Fletcher

From SCOTUSblog (h/t Indianz):

At 1 p.m. next Monday, an attorney will step to the Supreme Court’s podium to open the argument in a case pitting the rights of states against the rights of Indian tribes and the power of the federal government.  But, with that argument edging ever closer, the identity of that advocate is still not settled.

The Supreme Court finds itself in the midst of what one lawyer involved calls “this impasse” over who gets to speak first, or at all, in the first half of the argument in Carcieri v. Kempthorne (07-526).  Court aides have tried repeatedly to get the three parties lined up on that side of the case to settle on one attorney, but so far that effort has failed.

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Larisa on Monday sought to draw the Court back into the fray, filing a motion for reconsideration of the previous denial of divided argument, and seeking a split of 50-50 between himself and Olson.  If, however, the Court is unwilliing to do that, Larisa proposed a coin-toss, winner-take-all.  Larisa’s motion is here.

Olson, on behalf of the governor, responded on Monday with a letter to the Court saying that the governor and the attorney general do not support an equal division of the time, and do not support a coin toss.  But, Olson said, the governor would be willing to have Olson take 20 minutes and Larisa 10.  If some other means is necessary to resolve the impasse, Olson said, neither the governor nor the attorney general supports a coin toss, and the attorney general would not support any “random draw” to pick someone other than a state lawyer to speak for the state.  Their suggestion for an alternative: a majority vote of the three (which, it is obvious, would wind up with Olson getting the nod on the votes of the governor and attorney general).  Olson suggested that the Court then “give effect” to that majority by designating Olson to argue alone. The Olson letter is here.

Assistant Attorney General Neil F.X. Kelly, in a letter to the Court on Monday, opposed all of Larisa’s proposals, and indicated that Attorney General Lynch would agree at most to ”a democratic vote.”  But, Kelly said in closing, the office would approach the town again to see if the impasse could be settled.  Kelly’s letter is here.

If the impasse lingers, the Court could take up Larisa’s motion, perhaps at Friday’s Conference.  By the end of that day, there likely would be some order, giving the winner(s) the weekend for final preparation.

Carcieri Argument Still Up in the Air

Matthew L.M. Fletcher

From the Blog of the Legal Times:

UPDATE: Gibson, Dunn & Crutcher partner Theodore Olson, responding to the emergency motion for divided argument filed by Joseph Larisa (see below) wrote to the Court late Monday that his client Gov. Carcieri “does not object” to a 20-10 minute division of the half hour argument time, with Olson arguing for 20 minutes and handling rebuttal and Larisa arguing for 10 minutes. Larisa says Charlestown is agreeable to the arrangement suggested by Olson. But in a separate letter late Monday, Assistant Rhode Island Attorney General Neil Kelly told the Court that Attorney General Patrick Lynch still opposes divided argument and will undertake “a renewed effort to select one counsel.” Kelly’s letter refers to Larisa’s client, the town of Charlestown, as a “small town in Rhode Island” that has frustrated efforts to give the state one voice before the Court.

Exactly one week before oral argument in the case of Carcieri v. Kempthorne, agreement over which lawyer will argue for the appellants before the Supreme Court still seems far away — so far, in fact that the Supreme Court itself may decide.

Rhode Island Gov. Donald Carcieri and state Attorney General Patrick Lynch want former solicitor general Theodore Olson, a veteran of 50 arguments before the Court, to argue in the Indian land trust case, but the town of Charlestown, where the disputed land sits, wants its Indian affairs lawyer Joseph Larisa, a novice at the Court but the lawyer who has argued the case in courts below, to handle it. After the Court rejected motions for divided argument and both sides refused to back down, both Olson and Larisa filed conflicting forms with the Court stating they alone would argue for the full half-hour. The Court clerk’s office sternly told the two to resolve the issue and submit one name by this Thursday.

Today Larisa filed a letter with the Court telling it that because he understands “there will be no change whatsoever in the position of the governor and the attorney general,” there appears to be no way the two sides can comply with the request to submit a single name by Thursday. As a result, Larisa has filed an emergency motion to reconsider the possibility of divided argument, for placement on the agenda of the Court’s private conference this Friday. Minutes ago, Court officials confirmed Larisa’s motion will be placed before the Court on Friday.

“It’s most unfortunate that we have been unable to pick a name,” says Larisa, who adds that “the town of Charlestown does not want to wave the white flag.” With the state unwilling to budge, Larisa saw no other choice but to ask the Court to decide.

“Unless they want the two of us jockeying for position on Nov. 3, someone has to resolve this,” says Larisa, who is reconciled to the fact that he won’t know until one business day before the Court session whether or not he will be arguing. Referring to the original authors of the book Supreme Court Practice, the 1,427-page tome on the rules and customs of practicing before the high court, Larisa adds, “They’re going to have to write a new paragraph in Stern and Gressman for this case.”

Jeffrey Rosen on a “Judicial Apocalypse” if McCain Elected

Matthew L.M. Fletcher

From the New Republic:

During every presidential campaign for the last two decades, liberals have predicted an apocalypse in the Supreme Court. In their dire visions, as many as four justices are always about to retire, meaning that a Republican victory would turn the court radically to the right and lead to the certain overturning of Roe v. Wade.

In each of the past three elections, of course, these hyperbolic predictions have turned out to be wrong. Since 1996, Roe has been supported by a comfortable 6-3 majority, and the Court, controlled by two relatively moderate swing justices, Sandra Day O’Connor and now Anthony Kennedy, has remained fairly centrist. All of this had led some Court-watchers, including me, to conclude that the stakes for the Court in most presidential elections are less dire than many liberals fear.

Not this time. This year, for the first time since the New Deal era, a single election really does have the power to transform the Court–at the very moment that voters, rightly concerned about the tanking economy and the war in Iraq, are looking the other way. Given the fact that the older justices are liberal rather than conservative–and that the oldest, John Paul Stevens, is 88–it’s hard to deny that nominations by John McCain would change the Court far more dramatically than those by Barack Obama. An Obama victory would maintain the current balance of the Court, while a McCain Court could create a solid conservative majority.

What’s at stake is not only Roe v. Wade, but issues directly tied to the current concerns of the public: among them, Congress’s power to regulate the economy as well as limits on the president’s power to act unilaterally in the war on terrorism. Although McCain claims to favor justices who will defer to the political branches, the most likely Republican nominees are hardly consistent advocates of judicial deference. Voters who are hoping McCain will nominate relatively moderate judicial mavericks should think again.

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MichGO v. Kempthorne Cert Petition

Matthew L.M. Fletcher1 Comment

Here is is: michgo-cert-pet-10-23-08

The questions presented are two-fold. First, the petitioners raise the nondelegation doctrine argument that caused Judge Rogers Brown in the D.C. Circuit to dissent below. And second, the petitioners make the same argument about recently recognized tribes that the Supreme Court will decide in Carcieri v. Kempthorne.

See our earlier posts here and here and here and here and a link to an Indian Country Today article about MichGO.

The interesting question here will be whether the government will file a response at all, given that there’s no circuit split (by MichGO’s admission), that the SCT already denied cert on the first issue in the Carcieri litigation, and that the second issue will be decided by Carcieri.

Carcieri Oral Argument Fight Not Over Yet

Matthew L.M. Fletcher

From Indianz:

Officials in Rhode Island are still fighting over who will argue Carcieri v. Kempthorne on November 3.

Laurence Tribe a leading U.S. Supreme Court practitioner, said Theodore B. Olson, a former Bush administration attorney, should represent the state. He said only “childish and selfish” reasons would prevent Olson from arguing the case. “The obvious solution is for Ted Olson to argue the case. He’s much more experienced … But if they find that unpalatable, they should flip a coin and grow up,” Tribe told The Providence Journal.

Joseph Larisa Jr., the assistant solicitor for Indian Affairs for the town of Charlestown, still believes he should present the case but he is willing to do a coin toss. Gov. Donald Carcieri (R) Attorney General Patrick Lynch only want Olson to argue. At issue is whether the Narragansett Tribe can acquire land under the Indian Reorganization Act even though the tribe wasn’t recognized at the time of the act’s passage in 1934. If the tribe can acquire new lands, the state claims jurisdiction over them.

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EPA Cert Petition in EPA v. New Jersey

Matthew L.M. Fletcher1 Comment

This petition joins one already filed by the utilites (earlier cert petition and D.C. Circuit briefs and opinion here and here and here).

epa-cert-petition-in-epa-v-nj

Indianz Commentary on the Supreme Court’s 2008 Term

Matthew L.M. Fletcher

From Indianz:

With three Indian law cases already on the docket, this year’s U.S. Supreme Court term could get see the addition of some high-profile religious rights disputes.

The cases are being watched closely in Indian Country, whose efforts to limit negative rulings by the court have largely succeeded in recent years. Since the disastrous 2000-2001 term, when tribal interests lost nearly every decision, the justices have heard fewer and fewer Indian law cases.

This year looks a lot different, with the court set to resolve disputes over land-into-trust, the federal trust responsibility and Native Hawaiian rights. In all three instances, the lower courts ruled in favor of Native interests, leading to fears that the victories will be overturned.

The docket already has the Native American Rights Fund, whose attorneys help run the Tribal Supreme Court Project, suggesting that the current term “may prove to be another difficult period for Indian Country.”

The addition of two religious rights cases could make it even harder but since the lower courts ruled against Native interests both times, the justices may not be interested in hearing them. So far this term, they have already rejected three petitions from tribes who were on the losing end of a case.

The first case involves Winslow Friday, a member of the Northern Arapaho Tribe of Wyoming, who is being prosecuting for taking a bald eagle — a protected species — without a federal permit. He took the eagle for use in the sacred Sun Dance ceremony and argues that the permitting process violates his rights under the Religious Freedom Restoration Act.

“In the more than 20 years of the permit program’s existence, no individual tribal member has ever applied for or received a fatal-take permit,” his attorney wrote in a petition to the Supreme Court. “At the time of the hearing, only three permits had been issued, to two different tribes in the southwest represented by legal counsel, as opposed to individual Indians.”

A federal judge sided with Friday in October 2006 and dismissed the charges. But the 10th Circuit Court of Appeals reinstated the indictment in May of this year, rejecting the RFRA claims in a unanimous decision. Friday’s petition was filed October 1. The government’s response is due November 7.

In the second case, the Navajo Nation, the Hopi Tribe and other tribes in Arizona are suing to stop the U.S. Forest Service from allowing a ski resort in the sacred San Francisco Peaks to use reclaimed sewage to make snow.

The tribes say the presence of the wastewater will harm their religious beliefs. A three-judge panel of the 9th Circuit Court of Appeals initially sided with the tribes. But after a rehearing, an en banc panel reversed course and rejected the tribal RFRA claims by an 8-3 vote in August.

The tribes have not yet filed a petition with the Supreme Court. Earlier this month, the 9th Circuit agreed to stay the case while the appeal is being pursued.

Tribes used to look to the Supreme Court to protect their interests but the tide has changed in recent decades. Many attribute the reversal of fortune on the William Rehnquist, whose term as chief justice began in 1986 and ended in 2005, following his death.

“At a recent conference at the University of North Dakota School of Law, professor Alex Skibine remarked that since 1988, the Supreme Court has decided 33 of 44 Indian law cases against tribal interests,” Matthew Fletcher, the director of the Indigenous Law and Policy Center at Michigan State University, wrote in an Indian Country Today opinion piece last year.

President Bush’s two nominees to the Supreme Court — John G. Roberts, who now serves as chief justice, and Samuel Alito — have shifted the court into more conservative grounds. The winner of the next presidential election — either Sen. Barack Obama or Sen. John McCain — may get a chance to shape the court even further.

Dean Chemerinsky on the Roberts Court

Matthew L.M. Fletcher

Dean Erwin Chemerinsky has posted “The Roberts Court at Age Three” on SSRN, forthcoming in the Wayne Law Review. Here is the abstract:

On June 26, 2008, the Supreme Court completed the third term of the John Roberts era. This article develops four themes concerning where the Supreme Court is right now and where it is likely to be going. First, so far, the Roberts Court has been characterized by its dwindling docket. Second, although it is called the Roberts Court out of tradition and deference to the Chief, in actuality it is the Anthony Kennedy Court. When it matters most, Kennedy is virtually always the deciding vote in 5-4 decisions. Third, this is the most conservative Court since the mid-1930s and is a Court that generally favors the government over claims of individual rights and business interests over those of employees and consumers. Fourth, the 2008 election is likely to determine whether the Court becomes more conservative or stays ideologically the same. It is unlikely that the Court will become more liberal during the next presidency or even the next five to ten years.

Carcieri Impasse: Decided by Coin Toss?

Matthew L.M. Fletcher

From the Legal Times (H/t Indianz):

It’s the classic dilemma that faces parties who suddenly find themselves before the Supreme Court. Who should argue: the lawyer who has been with the case from the beginning, or a seasoned Supreme Court advocate who knows which buttons to push to win the hearts and votes of five justices?

The Supreme Court created just such a dilemma Monday in its handling of motions filed in Carcieri v. Kempthorne, set for argument on Nov. 3. As a result, says one of the lawyers involved, “we are at a massive impasse” over who will argue.

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