certiorari

“Factbound and Splitless” Profiled on SCOTUSBlog

Matthew L.M. Fletcher

From SCOTUSBlog:

Matthew L.M. Fletcher (Michigan State University College of Law) has posted “Factbound and Splitless: Certiorari and Indian Law” on SSRN, see here.  This article engages in an empirical study of 162 certiorari petitions that were filed in Indian Law cases between 1986 and 1994.  To my knowledge, this is the first attempt to systematically analyze certiorari petitions in tribal cases.  Professor Fletcher concludes that petitions brought by tribes during the period studied were often denied by the Court as factbound and splitless, while state and local governments received much more favorable treatment at the certiorari stage in tribal cases.  Although I must confess that I do not agree with some of the conclusions reached in this paper, Fletcher’s article is thought-provoking and interesting. [David Stras]

MichGO’s Reply Brief

Matthew L.M. Fletcher

The certiorari stage briefing in Michigan Gambling Opposition v. Kempthorne (No. 08-554) is complete with the filing of the petitioner’s reply brief (here).

Here are the other briefs.

The conference where the Court will discuss this case is January 9.

Obama Judicial Appointments and the Supreme Court

Matthew L.M. Fletcher

Today’s WaPo article on the possibility that President Obama’s judicial appointments to the federal courts of appeal might reshape much of American law raises a few interesting questions, perhaps ones that can be empirically assessed over the course of his administration.

According to the article, 56 percent of the current federal court of appeals judges were appointed by Republican presidents, and Obama could flip that. But the Supreme Court’s current conservative bent is unlikely to change much during his term, even if it stretches two terms.

My hypothesis is that the Roberts Court, assuming more and more appellate court decisions are “liberal,” will grant cert in more and more cases to counteract the trend. The Ninth Circuit, which is still a majority Democrat appointed bench, is the circuit most reversed by the Court right now.

I think there must be a relation to the general conservatism of the lower courts and the lack of cases in which the Roberts Court grants cert. It might only be 10-15 cases a year, but that’s still pretty significant.

Slate on Petition Stage Amicus Briefs before the Supreme Court

Matthew L.M. Fletcher

From Slate:

In its last term, the U.S. Supreme Court heard fewer cases than it has in any single term in more than 50 years. This means that getting your case heard at the high court is about 10 times harder than getting into Harvard. How do you up your odds? Just as a recommendation letter from a well-placed alum gets attention from an admissions office, a supportive brief from an advocacy group, sent to the court at the stage when it’s deciding whether to take a case, flags a case for the justices.

Each year, parties that have lost in the lower courts file about 9,000 petitions for a writ of certiorari (cert for short) in which they beg the court to hear them. The Supreme Court has nearly complete discretion over which cases it will take. Last term, only 69 cert petitions resulted in arguments before the justices. The lucky few were more likely to have gotten a helping hand from a friend-of-the-court brief, filed by an outside group with an interest in the case’s outcome. Influence, in this sense, is all about timing. Amicus briefs, as they’re known, tend to pile up on both sides of a case once the court takes it, all competing for the justices’ attention. But the amicus briefs filed before the court grants cert are much rarer, and, accordingly, more influential. Yet this is a tool that liberal groups often fail to use.

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WaPo Coverage of Exxon Valdez Oil Spill S.Ct. Case

Matthew L.M. Fletcher

From WaPo:

When a federal jury in Alaska in 1994 ordered Exxon to pay $5 billion to thousands of people who had their lives disrupted by the massive Exxon Valdez oil spill, an appeal of the nation’s largest punitive damages award was inevitable.

But almost no one could have predicted the incredible round of legal ping-pong that only this month lands at the Supreme Court.

In the time span of the battle — 14 years after the verdict, nearly two decades since the spill itself — claimants’ lawyers say there is a new statistic to add to the grim legacy of the disaster in Prince William Sound: Nearly 20 percent of the 33,000 fishermen, Native Alaskans, cannery workers and others who triumphed in court that day are dead.

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Tribal Amicus Brief in Exxon Valdez Damages Case

Matthew L.M. Fletcher

Brief of Amicus Curiae National Congress of American Indians et al., in Exxon Shipping Co. v. Baker (No. 07-219).

Other briefs in this case are here.

ICT Editorial on Cert Pool Memos & Indian Law

Matthew L.M. Fletcher2 Comments

You can read my newest Indian Country Today editorial here or here.

Here’s the text:

Each year, the U.S. Supreme Court chooses which appeals it wishes to decide. In most years, the court decides to hear fewer than 80 cases out of several thousand appeals. These usually include cases in which there is a split of authority in lower courts (often called a ”circuit split,” referencing the 13 federal circuit courts of appeals), cases in which a lower court has committed a gross error or cases in which there is a critical constitutional issue at stake. Cases in which there is no split, cases that will affect only a few people, cases involving simple correction of a minor lower court error or cases involving an unimportant issue are unlikely to be heard by the court.

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Blackmun Digital Archive Research — A Concordance of Indian Law Cases (1986-1993)

Matthew L.M. Fletcher

Justice Blackmun’s papers are starting to appear online. The docket sheets and the cert pool memos of each case in the docket years 1986 through 1993 are now available at this location. However, in order to find anything, you have to know the docket numbers.

I’ve listed all the Indian law cases I could find for those docket years. I used the United States Law Week categorization system, which puts Indian law cert petitions in the “Indians” or (now) “Native Americans” category. It does not do this for unpaid petitions, so my list is non-exhaustive. However, I captured a few important unpaid cert petitions because they were cross-referenced in other cert pool memos.

You can get this concordance at our occasional papers series website. It’s no. 2007-15.

It is a work in progress. Any additional information you have to make the concordance a better document would be much appreciated.

Tales from the Cert Pool: Montana Taxes at Crow

Matthew L.M. Fletcher

The Supreme Court denied cert in a case captioned Montana v. Crow Tribe of Indians, 484 U.S. 1039 (1988) (No. 87-343). The case involved the State’s attempt to impose severance and gross proceeds on a non-Indian mining company.

The cert pool memo (from a Rehnquist clerk no less) ripped the State’s argument:

[Montana]’s contention that its taxes should not be preempted because they fall on Westmoreland, rather than on the Crow Tribe itself, is ludicrous. The state severance and gross proceeds taxes have restricted the amount of taxation [Crow] can levy on its lessees. The CA9 found that the marketability of [Crow]’s coal was significantly diminished by [Montana]’s taxes, resulting in a corresponding decrease in the amount of money accruing to[Crow]’s coffers.

Cert Pool Memo at 7.

How times have changed. After Cotton Petroleum and Wagnon, states can strategically tax for the specific purpose of limiting on-reservation activities and all but eliminate tribal tax base.

Tales from the Cert Pool: Cherokee Nation v. US (Arkansas River Navigation System claim)

Matthew L.M. Fletcher

The Cherokee Nation brought suit against the United States over the Arkansas River Navigation System, arguing that the government’s actions violated the “fair and honorable dealings” language of the Indian Claims Commission Act, 25 U.S.C. 70a. The Court denied the petition.

The cert pool memo in the case includes some of the most exasperated language from a clerk in any of the Indian law related cert pool memos in the Blackmun Digital Archive:

In providing for ‘claims based upon fair and honorable dealings that are not recognized by any existing rule of law or equity,’ [25 U.S.C. § 70a] Congress invited litigation on a potentially limitless class of so-called ‘moral’ claims against the govt. … But how’s a ct to tell when the govt has done something that, while permissible under law and equity, is nonetheless ‘unfair,’ ‘dishonorable,’ or ‘immoral?’ Over the years, the cts have tried to give shape to the inquiry by requiring a tribe asserting a moral claim to demonstrate a relevant ‘special relationship’ with the fed govt. Yes, as this case shows, that inquiry can be as amorphous as the one it’s supposed to clarify. Arguably, in the words of one judge, having a ‘special relationship’ w/ the govt means simply ‘that though there is no contract or treaty obligation, or formal trusteeship, honor may oblige the United States to take steps to protect Indians…. What honor requires depends on circumstances and will vary from case to case according to the conscience of the court.’ [United States v. Oneida Indian Nation of New York, 576 F.2d 870, 883 (Ct. Cl. 1978) (Nichols, J.).] Given the strangeness of the entire inquiry, one cannot easily evaluate either the merits or the certworthiness of petr’s claim.

Cert Pool Memo at 8-9, Cherokee Nation of Oklahoma v. United States, 504 U.S 910 (1992) (No. 91-1354).

What’s even more interesting is the annotation added to the memo by Justice Blackmun’s clerk, who is identified as “NB”:

I would not want to see the Ct take this case. Because it is not one the Ct would handle well, it would likely declare the provision to be unenforceable. (Imagine the opn of Scalia, J.) I think in the long run your friends are best served by denying cert.

Id. at 11.