judicial minimalism

The SCOTUSblog commentary on the United States v. Tohono O’odham Nation decision — specifically the part where the commentator notes the Court’s “apparent disregard for minimalism” — provoked us to comment on judicial minimalism (or the lack thereof) in Indian law. With all due respect to Prof. Krakoff’s paper (50AmULRev1177), which argued that the Rehnquist Court used judicial minimalism to undermine the foundations of Indian law, a little judicial minimalism would look good to tribal advocates right about now.

In addition to the TON case, the Roberts Court has gone out of its way to pronounce much broader common law rules and decide larger questions first instead of deciding cases on narrower grounds.

Carcieri v. Salazar — The Court granted cert on two questions, the first of which was whether the Rhode Island Land Claims Settlement Act excluded the Narragansett Tribe from eligibility for Secretarial trust acquisitions under IRA Section 5. Instead of deciding that question in the negative, which they could have done, the Court jumped over that question and chose to offer an opinion (without actually answering anything, except as it related to the Narragansetts) about the broader question of whether tribes not federally recognized in 1934 were eligible.
Carcieri (again) — Even more, the Court could easily have remanded to the lower court for determination on whether the Narragansetts were “under federal jurisdiction” in 1934. Instead, the Court made a pronouncement that they were not, without allowing anyone to even offer evidence on the question.
Sherrill v. Oneida Indian Nation — Instead of deciding whether the Second Circuit’s common law decision on the tax immunity of Oneida-owned fee lands was valid, the Court jumped way ahead of the parties and decided the claims were barred by laches, an argument the New Yorkers had given up on 20 years earlier (again, without remanding for a factual determination on laches).
United States v. Navajo Nation II — After the Court struck down a $600 million judgment favoring the Navajo Nation, the Court again took up the case when the Navajos successfully argued for the same judgment on a different legal theory. Like Carcieri, the Court basically told the Navajos and the lower courts that it meant what it said the first time and shut the door to any further arguments.

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From SCOTUSblog:

The most striking feature of Tuesday’s opinion in United States v. Tohono O’odham Nation (No. 09-846) is the apparent disregard for judicial minimalism in Justice Kennedy’s opinion for the Court. The Court, in an opinion joined by Chief Justice Roberts and Justices Scalia, Thomas, and Alito, held that 28 U.S.C. § 1500, which prohibits a suit in the Court of Federal Claims (CFC) on a claim “for or in respect to which” the plaintiff has a suit pending in another court, applies to suits that share operative facts, even if they request different relief. The Court need not have decided that question, however, unless it confronted two suits with no remedial overlap, for precedent had already established that Section 1500 bars the new suit if the two suits share operative facts and request overlapping relief.

The Court’s opinion could therefore be characterized as abandoning judicial minimalism by refusing to decide the case on the narrowest possible grounds. The opinion refuses to even mention the preliminary question on which the oral argument focused: whether the Tohono O’odham Nation’s two suits—one in the CFC seeking money damages for the government’s breach of trust while managing Nation assets, and the other in the U.S. District Court for the District of Columbia seeking an equitable accounting and an accompanying payment of any shortfall for the same breach of trust—do in fact seek overlapping relief. If so, that question could have been dispositive – as it would have been for Justice Sotomayor, who filed an opinion concurring in the judgment that was joined by Justice Breyer.

Why would the Court decline to decide whether the two suits seek similar relief? The opinion itself provides no particular reason, other than a desire to move past the preliminary question to clarify the scope of Section 1500:

To continue to reserve the question [of whether § 1500 bars suits with no remedial overlap] would force the CFC to engage in an unnecessary and complicated remedial inquiry, and it would increase the expense and duration of litigation. The question thus demands an answer, and the answer is yes.

But comparing different types of relief is not difficult: as the concurrence points out, the CFC has been doing just that for almost fifty years in applying Section 1500. Instead, it is likely that the Court wanted to avoid deciding whether an equitable order to pay money is the same as money damages.

One possible reason emerges when one remembers that a distinction between those two forms of relief is the foundation of the district court’s jurisdiction over any suits claiming money from the government. According to 5 U.S.C. § 702, district courts can hear claims against the United States only if they “seek[] relief other than money damages.” Claims for money damages, by contrast, must be brought in the CFC. After Bowen v. Massachusetts (1988), however, a plaintiff could sue the United States for money outside of the CFC so long as he asked for an equitable order to pay money. Such a suit, the court reasoned, is distinct from a suit for money damages. Subsequently, lower courts have applied that reasoning to extend Bowen and allow suits against the government for money in the district court for a variety of plaintiffs, from government contractors and employees to claimants under many government spending programs.

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