Bill Kidder Responds to Michigan’s Empirical Assertions in Coalition to Defend — American Indian UC Enrollment Highlighted

Here, via SCOTUSblog.

An excerpt:

With respect to American-Indian students, the percentage enrolled at the University of California was lower in 2012 than in 1996 on seven of nine campuses: Berkeley, Davis, Los Angeles, Riverside, San Diego, San Francisco, and Santa Barbara. In summary, even with the remarkable expansion of 72,000 seats (and a new campus) at UC during this span, the percentage of African- American and American-Indian students enrolled in the UC system was still lower in 2012 than it was in 1996.

On Justice Sotomayor’s Judicial Philosophy

Angelique EagleWoman sent around this short article commenting on Justice Sotomayor’s judicial philosophy, which contains this remark:

In literally every case involving Native American rights in any form, Sotomayor has always sided with the Natives. In Match-E-Be-Nash-She-Wish Band v. Patchak, U.S. v. Jicarilla Apache Nation, Salazar v. Ramah Navajo Chapter, and most recently in Adoptive Couple v. Baby Girl, Sotomayor has taken the side of the Native American parties, even if that meant her being one of the only dissenters, if not the sole dissenter.

Thus, even though Sotomayor can be accurately labeled as “liberal, but unpredictable,” she’s still quite predictable in cases involving Native rights.

– See more at:

As an advocate for most tribal causes, I find it refreshing to see a Justice take an interest in Indian law and tribal interests. Even when she’s in dissent, which she will be nearly every time until (and if) there is a massive shift in the Supreme Court, she gives a voice to the tribal advocates and their cause that has been missing since the retirements of Justices Blackmun and Brennan (and, I would argue, the entire history of the Supreme Court and the federal judiciary). In fact, Justice Sotomayor’s SCT record is far better than tribal advocates could have hoped when President Obama nominated her.

But a word of caution. My sense is that the strong dissents coming from Justice Sotomayor are being heard by those on the Court in opposition to her views — and they are responding in kind. I read Jicarilla and Adoptive Couple (despite the real and continuing tragedy of that case) as being very narrow questions, but looking at the majority opinions, there are broad statements directly attacking important understandings of tribal interests that might not have appeared in a majority opinion except in response to a strong dissent. Would Justice Alito have made such damning remarks about the trust responsibility and the Indian Child Welfare Act unless the legal positions the majority adopted had not been so powerfully attacked by Justice Sotomayor? I wonder.

An analog of sorts are the equal protection cases, where there is simply no full-throated defense of marriage equality from the liberals on the Court so terrifically and justifiably worried about losing Justice Kennedy’s vote. When you’ve the votes, you don’t need to defend the position as much. But, in the case of affirmative action, where the last strong defense of AA came in Bakke, the liberal side’s analysis hasn’t been developed at all. It has hurt in the long run.

In sum, Justice Sotomayor’s dissents are outstanding and powerful, and much of what she argues may one day become the law. At least someone on the Court is making those arguments. And I suspect the majority knows, like Justice Scalia admitted in other contexts, that they’re on the wrong side of history; hence, the expansive dicta. And to lower court judges, dicta is the law. Tribes are timeless entities. But there’s a long slog ahead.

P.S. I thank Yale law prof. Reva Siegel, whose scholarship and comments significantly influenced these views of mine.

Fletcher on Native America Calling this Friday on Affirmative Action

Here. The program description:

Friday, October 26, 2012 – Affirmative Action in Education:
Earlier this month, the U.S. Supreme Court heard arguments on the constitutionality of affirmative action in higher education. This issue is something that has many in Indian Country concerned. With this in mind we ask, is diversity in college admissions a right Native students should be afforded? Can Native students still expect a quality college education if their test scores and academics aren’t measured equally to non-native students from more affluent backgrounds? What will the future look like for Native college hopefuls if the Supreme Court decides for or against? We’ll explore these questions and more as we discuss the Supreme Court, Affirmative Action, and the future of Native College students.

Opening Merits Stage Briefs in Fisher v. University of Texas

Here (briefs in red below are those that mention Elizabeth Warren):

Merit Briefs

Amicus Briefs