Supreme Court

Jenn Weddle Guest Commentary on Lewis v. Clarke

Matthew L.M. Fletcher

This was the best possible result in this case (a narrow remand).  Justice Sotomayor’s opinion keeps tribal employees on equal footing with federal and state employees and decides the import of indemnification provisions – really have nothing to do with Indian law and instead having everything to do with government employee indemnification law.  The result seems to be a reasonable limiting principle for the Court.

The Court also left open the official immunity arguments (upon which amici focused) because those were not raised by Clarke in his motion to dismiss.  The record didn’t have findings on that, but the NCAI/States/Tribes amici brief laid out the arguments as an ‘alternative theory’ as to why the Connecticut Supreme Court had been right in the result.

It is reasonable to anticipate that Clarke will now argue those matters on remand.  And this case will go back to Connecticut District Court, with the Lewises now divorced and vastly undercutting their loss of consortium claims, such that the remand may well go away quickly in settlement before it even begins.

I don’t see that tribes or tribal employees lose any ground as a result of this opinion.  Importantly, the official immunity arguments were not touched by the Court (per footnote 2), and I don’t see the majority opinion as saying anything negative for tribes’ role in our federalism.

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Opinion and materials here.

Unanimous SCOTUS Rules Against Tribe in Lewis v. Clarke

Matthew L.M. Fletcher1 Comment

Here is the opinion.

Materials here.

U.S. Supreme Court Reverses and Remands Lewis v. Clarke

Kate Fort2 Comments

Opinion here.

JUSTICE SOTOMAYOR delivered the opinion of the Court.

Indian tribes are generally entitled to immunity from suit. This Court has considered the scope of that immunity in a number of circumstances. This case presents an ordinary negligence action brought against a tribal employee in state court under state law. We granted certiorari to resolve whether an Indian tribe’s sovereign immunity bars individual-capacity damages actions against tribal employees for torts committed within the scope of their employment and for which the employees are indemnified by the tribe.

We hold that, in a suit brought against a tribal employee in his individual capacity, the employee, not the tribe, is the real party in interest and the tribe’s sovereign immunity is not implicated. That an employee was acting within the scope of his employment at the time the tort was committed is not, on its own, sufficient to bar a suit against that employee on the basis of tribal sovereign immunity. We hold further that an indemnification provision does not extend a tribe’s sovereign immunity where it otherwise would not reach. Accordingly, we reverse and remand.

Previous posts, briefs, and other documents here.

Cert Petition Filed in Case Challenging Constitutionality of SBA Section 8(a)

Matthew L.M. Fletcher

Here is the petition in Rothe v. Dept. of Defense:

Cert Petition

Questions presented:

1. Whether a statutory program that requires an agency to distribute benefits to “socially disadvantaged individuals,” and defines “socially disadvantaged” in terms of membership in certain racial minority groups, classifies on the basis of race and is thus subject to strict scrutiny.
2. Whether a statute that may not classify exclusively on the basis of race, but uses race as a factor in determining eligibility for benefits, is subject to strict scrutiny.

Lower court opinion here.

SCOTUS Denies Cert in Sun v. Mashantucket

Matthew L.M. Fletcher

Here is today’s order list.

Cert petition here.

Elie Mystal on the Chief Justice

Matthew L.M. Fletcher

Here is “John Roberts, Silent During The Garland Process, Suddenly Worries About Partisanship.”

An excerpt:

When Mitch McConnell decided that black presidents only get to be president for seven years and refused to hold a hearing on Barack Obama’s nominee to the Supreme Court, there was only one man in the country who could have stopped him: Chief Justice John Roberts. Roberts could have spoken up. He could have urged the Senate to perform its Constitutional duty. He could have explained how the Senate’s actions were hurting the Court.

Instead, he said nothing.

WaPo: “If Gorsuch is like his colleagues, he’ll constantly interrupt the female justices”

Matthew L.M. Fletcher

Here.

The empirical research backing this claim is here.

The Apolitical Case against Judge Gorsuch

Matthew L.M. Fletcher

Here is Emily Bazelon and Eric Posner’s “The Government Gorsuch Wants to Undo.” An excerpt:

But the reality is that Judge Gorsuch embraces a judicial philosophy that would do nothing less than undermine the structure of modern government — including the rules that keep our water clean, regulate the financial markets and protect workers and consumers. In strongly opposing the administrative state, Judge Gorsuch is in the company of incendiary figures like the White House adviser Steve Bannon, who has called for its “deconstruction.” The Republican-dominated House, too, has passed a bill designed to severely curtail the power of federal agencies.

Here are several other tidbits on this issue:

Richard Hasen’s “Neil Gorsuch got where he is because of a form of affirmative action.”

Elie Mystal’s “Truck Drivers Weigh In On TransAm Trucking Case, Neil Gorsuch Nomination.”

NCAI/NARF Support Documents: NCAI NARF Gorsuch letter Final and NCAI Summary of Gorsuch Confirmation Hearing

Turtle Talk’s summary of Judge Gorsuch’s Indian law record.

 

SCOTUS Denies Cert in Citizens Against Reservation Shopping v. Zinke

Matthew L.M. Fletcher

Here is today’s order list.

Here are the cert stage briefs.

Gorsuch: “Tribes are . . . Sovereign Nations”

Matthew L.M. Fletcher2 Comments

Here is a link to a short clip created by a user on C-SPAN from Judge Gorsuch’s testimony. Judge Gorsuch mentions his decisions in cases involving the Ute Tribe and the Osage Tribe. Thanks to John Dossett.