amicus briefs

New Fletcher Working Paper on Amicus Briefs in the Supreme Court’s Indian Cases

Matthew L.M. Fletcher

I have posted a fairly rough draft of a new paper titled, “The Utility of Amicus Briefs in the Supreme Court’s Indian Cases,” on SSRN. Comments welcome.

Here is the abstract:

Four times in the past 15 years, arguments or information raised by amici before the Supreme Court have had dramatic impacts on the Court’s decision making process in cases involving federal Indian law. In two cases involving government contracting, amicus briefs filed by the United States Chamber of Commerce supporting tribal interests played important roles in pointing out the impact the Court’s decision would have on defense and other government contractors. In another case, an amicus railroad company alleged that the procedures in one tribal court were stacked against nonmembers, apparently causing the Court to reconsider its views on tribal civil jurisdiction. In a fourth case, an amicus resuscitated a line of argument long thought to be retired from the field (in fact, none of the parties briefed the argument) and persuaded the Court to decide a case on that basis. What about these briefs, as opposed to the hundreds of other Supreme Court amicus briefs filed in the Court’s Indian cases, served to influence the Court so heavily? This short paper hopes to sort out a few general guidelines for amicus brief writers in federal Indian law cases by reviewing a series of amicus briefs and how we know the Court deals with them.

Amicus Briefs Supporting Respondent in Salazar v. Ramah Navajo Chapter

Matthew L.M. Fletcher

Here:

11-551 Amicus Chamber of Commerce

11-551 Ramah Amicus National Congress of American Indians et al

No. 11-551 Arctic Amicus in Ramah 3-26-12

The Impact of Corporate Amicus Briefs in the Supreme Court

Matthew L.M. Fletcher

Here.

Supreme Court Amicus Briefs Supporting Tribal Interests in Patchak

Matthew L.M. Fletcher

Here:

NCAI & NAFO Amicus Brief

Wayland Twp et al Amicus Brief

NYTs on Law Professors and SCT Amicus Briefs

Matthew L.M. Fletcher

Here.

The paper to which this article discusses is here.

On Justice Ginsburg’s Admission She Doesn’t Read “Most” Amicus Briefs

Matthew L.M. Fletcher

Justice Ginsburg admitted earlier this week at a talk at SMU that she doesn’t read most amicus briefs. [A link to an article about her talk is here.] Here is an excerpt of the article reporting on the discussion:

To prepare for oral arguments in all cases, Ginsburg said she reads all the prior opinions and part of the record before opening the lawyers’ briefs. She follows that order so she may spot inaccuracies in the briefs. “Lawyers should know, if they try to distort the record, they will be found out,” she said. Writers of amicus briefs face other concerns: “I have to confess, I don’t read all of those. In fact, I don’t read most of them,” Ginsburg said.

The possibility that Supreme Court Justices don’t read amicus briefs, or only read a few of them, is not new. In fact, the Tribal Supreme Court Project’s greatest successes so far have been  in limiting the number of redundant amicus briefs filed in the Court, and negotiating strategies for targeted, careful amicus briefs.

What is new, a little bit, is the admission from one of the Justices. Our question is this: Will there be an impact on the market for amicus briefs? Right now, just about every Supreme Court practitioner shop in D.C. has clients willing to shell out dough for amicus briefs. Will that market start to dry up, even just a little bit?

Regardless, this information is sobering.

Amicus Briefs in the Supreme Court’s Indian Cases (Roberts Court Era)

Matthew L.M. Fletcher

Frank Pommersheim’s wonderful paper on the amicus brief strategies in Plains Commerce Bank in the South Dakota Law Review (email me if you want a copy) is a starting off point for this (yet another) quick study of Supreme Court adjudication, as is the recent short paper on the rise of the citation to amicus briefs in the Roberts Court (via How Appealing).

In short, the Court pays attention to amicus briefs siding with the tribes, discussing them at length, and rejecting the pro-tribal interest arguments uniformly.

Let’s begin with the case name that cites to an amicus brief, and then perhaps a quote from the opinion:

United States v. Jicarilla Apache Nation:

We cannot agree with the Tribe and its amici that “[t]he government and its officials who obtained the advice have no stake in [the] substance of the advice, beyond their trustee role,” Brief for Respondent 9, or that “the United States’ interests in trust administration were identical to the interests of the tribal trust fund beneficiaries,” Brief for National Congress of American Indians et al. as Amici Curiae 5.

Carcieri v. Salazar:

From the majority opinion:

The Secretary and his amici also go beyond the statutory text to argue that Congress had no policy justification for limiting the Secretary’s trust authority to those tribes under federal jurisdiction in 1934, because the IRA was intended to strengthen Indian communities as a whole, regardless of their status in 1934. Petitioners counter that the main purpose of § 465 was to reverse the loss of lands that Indians sustained under the General Allotment Act, see Atkinson Trading Co. v. Shirley, 532 U.S. 645, 650, n. 1, 121 S.Ct. 1825, 149 L.Ed.2d 889 (2001), so the statute was limited to tribes under federal jurisdiction at that time because they were the tribes who lost their lands. We need not consider these competing policy views, because Congress’ use of the word “now” in § 479 speaks for itself and “courts must presume that a legislature says in a statute what it means and means in a statute what it says there.”

And yet again: Continue reading →

Navajo Nation’s Amicus Brief in Voting Rights Act Case

Matthew L.M. Fletcher1 Comment

From the ASU Indian Law blog:

The Indian Legal Clinic and Sacks Tierney filed an amici brief in the above-reference case regarding the constitutionality of the Section 5 preclearance requirements. Indian Legal Clinic Student Attorney Nikki Borchardt (3L), Adjunct Professor and ASU Alum Judy Dworkin and Professor Patty Ferguson Bohnee prepared the brief.

Brief of the Navajo Nation, Anthony Wounded Head, et al. Amici are concerned that if the Court declares that the reauthorization of Section 5 is unconstitutional, American Indian voting rights will be significantly impacted and result in a reversal of the strides made in recent years to ensure greater Indian voter participation. This would negatively impact many American Indian voters who only recently secured the right to vote, continue to face discrimination in voting, and who cannot shoulder the financial burden to bring lawsuits under Section 2 of the VRA.