Reuters Article on Certiorari and the Supreme Court Bar

Here is “The Echo Chamber.”

An excerpt:

The rise of the Supreme Court specialty bar is not universally embraced by the profession. But it is by the justices. Two, in particular, lamented the refusal of some criminal defense lawyers to turn over high court cases to specialists.

“It is as if they are arguing with one hand tied behind their back,” Kagan said.

Said Justice Sonia Sotomayor: “I think it’s malpractice for any lawyer who thinks this is my one shot before the Supreme Court and I have to take it.”

SCOTUSBlog interviewed Joan Biskupic, who led the reporting team.

Tribal Interests Win-Loss Rates in the 21st Century — Trend Downward for Tribal Interests?

Ok, so I used the westlaw search function and dug up all the cases from the federal courts of appeal (published and whatever unpublished opinions show up) that included the words “Indians” or “tribe.” That got me well over 3600 cases for 2000-present, so I used westlaw’s relevance function to make them most relevant for me. The first 850 or cases usually included what I call “tribal interests” — then the drop-off was steep so I stopped looking at 1000. [I should note that the Tohono O’odham case that went to the Supreme Court didn’t show up until 990s, so there’s that.] I counted wins and losses, excluded cases where tribes went against tribes, Indians went against tribes (except in criminal cases — a few ICRA habeas cases, in other words), and most criminal cases involving Indian defendants (except where Indian country/reservation boundaries had play, and Duro fix-style cases). I split them up by 2000-2009, and 2010-present.


Tribal interest wins — 233

Tribal interest losses — 179

Winning percentage — 56.6 percent


Tribal interest wins — 55

Tribal interest losses — 77

Winning percentage — 41.7 percent

So we’re one-third or so through the 2010s, and things aren’t looking so great for tribal interests. Is this significant, statistically or otherwise? Make your own judgments.

A few more comments on methodology. Yeah, I know “wins” and “losses” are subjective, but they’re not really. A tribe is an appellant, the appellate court reverses. That’s a win. Also, what is a “tribal interest”? That’s a little more in the eye of the beholder. And since I am the beholder, I call it as I see it.

With a few thousand RA hours at my disposal, I could do this going back forever, set it out by appellate court, whether there was a dissenter, results in published versus unpublished opinions, what the majority of the panels’ political affiliations were, and how often the Supreme Court granted cert and reversed, etc. Not going to happen this year, but it will happen.

That reminds me. Nineteen times the Supreme Court granted cert off of tribal interest wins below (no idea out of how many cert petitions). Twice the Supreme Court granted cert off of tribal interest losses below (Patchak and Chickasaw, both cases in which the OSG sought or acquiesced in the petition, and both affirmed).

Certiorari off of Tribal Interest Wins in COAs

288 wins

19 grants

6.6 percent of wins end up at the Supreme Court

Certiorari off Tribal Interest Losses in COAs

256 losses

2 grants

0.8 percent of losses end up at the Supreme Court

And so it goes.

Additional Preliminary Results on Certiorari Study: The Federal Government’s Role

As noted before in my certiorari study, tribal interests do very poorly in the certiorari stage of Supreme Court litigation, especially compared to the state interests and private parties that oppose them. But what about the United States, which plays both sides depending on the case? Here are some preliminary stats:

United States as petitioner:

  • 23 petitions, 14 grants, 7 denials
  • 2 petitions pending in 2010 Term
  • 67 percent grant rate (so far)

United States as petitioner, listed whether opposing or supporting tribal interests:

  • 15 petitions opposing tribal interests, 10 grants (67 percent)
  • 6 petitions supporting tribal interests, 4 grants (67 percent)
  • 2 pending petitions opposing tribal interests

So whether the government petitions for or against tribal interests, according to these limited numbers, their success rate is irrelevant — it’s all 67 percent. Of course, 71 percent of the cert petitions oppose tribal interests.


Preliminary Results of New Study of Certiorari and Indian Law

While workshopping what would become my tenure paper, Factbound and Splitless, a fairly direct critique of the certiorari process in relation to Indian law cases, at various law schools and with law professors around the nation, I became aware that former Supreme Court clerks were split on the persuasiveness of my critique (I am not a former clerk). Former clerks who were part of the so-called cert pool were usually not persuaded by my argument that the Supreme Court discriminated against tribal interests at the cert stage (and especially my secondary point that cert pool memos and clerks’ opinions had much influence on the Court), while former clerks not part of the cert pool were more interested (and in some cases overwhelmingly supportive) of my thesis. The big breakthrough for me, I think (though it wasn’t anything I could use in the article), was an admission by a former cert pool clerk who seemed skeptical of my claims as a general matter. After my talk was over most people had left the room, however, she conceded that as a clerk, she had treated tribal cert petitions as being about as important as prisoner habeas petitions. Only when the tribe (same with the prisoners) had won below did she spend additional effort on the cert pool memo because (and I am paraphrasing) tribes weren’t supposed to win.

Key to a study of certiorari is the axiomatic notion that the Court usually (though not always, to be sure) grants cert with an eye toward reversing the lower court. Some 70 percent of Supreme Court decisions are reversals, giving significant weight to this understanding. In short, persuading the Court to grant cert (for most petitioners) is more than half the battle toward prevailing, especially given that fewer than one in twenty cert petitions are granted.

Since the 1986 Term, the Supreme Court has granted review in 68 Indian law cases. [Warning, this is a preliminary study, and the numbers below are subject to change, but not significantly.]

  • The Court has granted 14 out of 21 petitions filed by the United States (67 percent)
  • The Court has granted 33 out of 117 petitions filed by states and state subdivisions (28 percent)
  • The Court has granted 13 out of 151 petitions filed by private, non-Indian parties (8 percent)
  • The Court has granted 7 out of 347 petitions filed by tribal interests (tribes and individual Indians) (2 percent) [six of these grants was accompanied by an invitation brief, an amicus brief, or other brief by the United States recommending a grant — in other words, only 1 tribal petition has been granted without the government’s consent]

In cert oppositions, the same trends hold:

  • When state interests are in opposition to a cert petition, the Court granted 7 out 157 petitions (4 percent)
  • When private parties are in opposition to a cert petition, the Court granted 7 out of 78 petitions (9 percent)
  • When tribal interests are in opposition to a cert petition, the Court granted 45 out of 217 petitions (21 percent)

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“Factbound and Splitless” Available Online

Here and here (Factbound and Splitless):

Factbound and Splitless: The Certiorari Process as Barrier to Justice for Indian Tribes

Matthew L.M. Fletcher

The Supreme Court’s certiorari process does more than help the Court parse through thousands of “uncertworthy” claims—the Court’s process creates an affirmative barrier to justice for parties like Indian tribes and individual Indians. The Court has long maintained that the certiorari process is a neutral and objective means of eliminating patently frivolous petitions from consideration. But this empirical study of 163 preliminary memoranda, recently made available when Justice Blackmun’s papers were opened, demonstrates that the Court’s certiorari process is neither objective nor neutral. The research, reflecting certiorari petitions filed during October Term 1986 through 1993, demonstrates that statistically, there is a near zero chance the Supreme Court will grant a certiorari petition filed by tribal interests. At the same time, the Court grants certiorari to far more petitions filed by opponents of tribal sovereignty.

New Papers about the Solicitor General

How fortuitous that my paper on the Solicitor General’s strange lack of success defending tribal interests before the Supreme Court becomes available the same day Patricia Millett’s paper on stategies for obtaining amicus help from the Solicitor General’s Office goes up on SCOTUSBlog!?!

Here’s the write-up on Ms. Millett’s paper from SCOTUSBlog:

Patricia Millett recently published this article (PDF download) in the Tenth Anniversary edition of the Journal of Appellate Practice and Process (Vol. 10, No. 1; Spring 2009).  It addresses the Supreme Court’s unique practice — not mentioned in the Court’s rules — of calling for the views of the Solicitor General at the certiorari stage, and the process of obtaining amicus support from the Solicitor General in such cases, as well as in cases in which review has been granted.

And my abstract (paper download here):

This short paper prepared for the 2009 Federal Bar Association’s Annual Meeting offers preliminary results of a study of the OSG in the Supreme Court from the 1998 through the 2008 Terms. I study the OSG’s success rates before the Court in every stage of litigation, from the certiorari process, the Court’s calls for the views of the Solicitor General, and on the merits of the cases that reach final decision after oral argument.

The paper begins with the preliminary data on the OSG’s success rate in Indian law cases. The data demonstrates that the OSG retains its success rate in both the certiorari process and on the merits when the United States is in opposition to tribal interests. But when the OSG sits as a party alongside tribal interests, and especially when the OSG acts as an amicus siding with tribal interests, the OSG’s success rate drops dramatically.

Andrew Cohen’s CourtWatch and “Factbound and Splitless”

From CBS News (download the paper here) (How Appealing and Indianz):

Bury My Chance at Supreme Court

Andrew Cohen: Study Shows Indian Tribes Face Long Odds In “Cert Pool” Process at High Court

This coming Monday, the United States Supreme Court will hear oral argument in a case involving the coal royalty rights of the Navajo Nation. It will be the second time the Justices have involved themselves in the dispute. The first time, in 2003, the Court sided with the government, that is to say the Interior Department, which at the request of an energy corporation had blocked a royalty increase to the Nation.

The case was then sent back down to the Federal Circuit Court for a new look. In 2007, that lower appeals court again sided with the Navajo people, ruling that the government had breached its fiduciary duty to the Nation. The Bush Administration again appealed, arguing that a ruling in favor of the tribe would “encourage the filing” of other claims against the Interior Department. And, last fall, the Supreme Court yet again expressed through its certiorari process (the means by which the Court typically agrees to accept certain cases and reject others) a willingness to step in and save the feds in their fight against the tribe.

While the merits of the case are complex, it is a virtual certainty that the Court’s majority will once again reject the claims of the Navajos. That alone might be cause for some serious discussion about the relationship between the Court and American Indians. But thanks to an important study by Michigan State University Law Professor Matthew L.M. Fletcher we now know that there may be a problem that goes way beyond this single case.

Fletcher’s trenchant study, entitled “Factbound and Splitless,” concludes that the “Supreme Court’s certiorari process is a barrier to justice for parties like Indian tribes and individual Indians. Statistically,” he writes, “there is a zero chance the Supreme Court will grant a certiorari petition filed by tribal interests. At the same time, the Court grants certiorari in more than a quarter of petitions filed by the traditional opponents to tribal sovereignty.” A 25 percent acceptance rate for any category of cert petitions is remarkably high in any circumstance-especially when compared with the number of, say, death penalty appeals that are accepted each term.
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How Appealing Profiles “Factbound and Splitless”

From How Appealing:

“MSU scholar says Indians face Supreme Court bias”: The Michigan Messenger yesterday posted online this item about a paper titled “Factbound and Splitless: Certiorari and Indian Law” by law professor Matthew L.M. Fletcher.