Justice Breyer

Justice Breyer on Cherokee Cases and the Supreme Court’s History

Matthew L.M. Fletcher2 Comments

From the Yale Daily News via How Appealing:

Even as a teenager, Supreme Court Justice Stephen Breyer cast a long shadow, University President Richard Levin said Monday.

Breyer and his younger brother, Charles, attended Lowell High School in San Francisco — followed less than a decade later by Levin, who said the highest praise he received as a student was that his school work was the “best since the Breyer brothers.”

Levin then followed Breyer at Stanford and Oxford, but their paths diverged when Levin chose to attend Yale to get his doctorate in economics, and Breyer chose to attend Harvard Law School.

Thirty-five years later, Levin said he could sum up Breyer in a single word.

“He’s awesome,” Levin said, introducing the Justice to a packed Law School Auditorium crowd Monday afternoon for a lecture titled “History: Challenges the Court Has Faced.” In the lecture, Breyer highlighted several key cases in the Supreme Court’s history in an attempt to answer one question that he said foreign judges often ask him about the Court: “Why does it work?”

The answer, Breyer said, is complicated. Over the course of United States history, Americans have come to accept the Court’s decisions as binding — though this was not always true. To demonstrate this, Breyer highlighted prominent cases that illustrate the establishment of the Court’s authority, including Marbury v. Madison in 1803, Worcester v. Georgia in 1832, Cooper v. Aaron in 1958 and Bush v. Gore in 2000.

Breyer began the lecture by praising Chief Justice John Marshall’s wisdom in Marbury v. Madison — which established the Court’s right to review the actions of the executive and legislative branches — without raising the ire of then-President Thomas Jefferson.

“Chief Justice Marshall called upon Houdini Marshall to get out of a jam,” Breyer joked, explaining that Marshall managed to make Jefferson think he had won while actually expanding the Court’s authority.

Breyer then referred to the conflict that arose between Marshall and President Andrew Jackson in 1832, when the Court ruled that the state did not have jurisdiction over Cherokee lands, quoting a famous — though possibly falsely attributed — line from Jackson: “John Marshall has made his decision — now let him enforce it.” Eventually, Breyer said, Jackson came to regret this decision when South Carolina claimed that if Jackson and the state of Georgia did not have to submit to the Court’s decision, South Carolina did not have to pay federal tariffs. This disagreement is widely cited as influential in the start of the Civil War.

“Even Jackson figured out that was not such a good idea,” Breyer said. Continue reading →

Forthcoming Federal Lawyer Article: “The Supreme Court and the Rule of Law: Indian Law Case Studies”

Matthew L.M. Fletcher

It looks like I’ll have a short paper in the Federal Lawyer in the March/April 2008 issue they publish in conjunction with the FBA Indian Law Conference. This one is called “The Supreme Court and the Rule of Law: Indian Law Case Studies” and is based in part on my forthcoming Hastings Law Journal article, “The Supreme Court’s Indian Problem” (well, it’s sort of like outtakes from that article).

Here’s the abstract:

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Andrew Jackson, the Cherokees & the Judgment Power

Matthew L.M. Fletcher

Ok, so earlier today I posted two articles back to back for a reason. They are (1) a light LA Times commentary on Andrew Jackson (okay dude or Hitler?); and (2) a dense law review article on the Article III judgment power by William Baude. They’re connected, in my opinion, although I doubt it is apparent to anyone but me.

Here it goes:

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“The Supreme Court’s Indian Problem”

Matthew L.M. Fletcher

I just accepted an offer from the Hastings Law Journal to publish my new paper, “The Supreme Court’s Indian Problem.” Here’s the abstract:

This year, while accepting the “Rule of Law” award from the American Bar Association, Justice Breyer proclaimed that our constitutional system “floats on a sea of public acceptance.” At that time, Breyer’s statements were meant to highlight his expectation that the Court will decide its cases following the “rule of law.”

However, Breyer’s statement, while demonstrative of his faith in the rule of law, does not always ring true. In fact, as I argue, the Supreme Court often decides its cases by ignoring, rather than following, the rule of law. This problem is particularly acute in the body of federal Indian law – which has cast a disastrous shadow on tribal interests. Tribes have lost about three-quarters of their cases before the Supreme Court since 1988. Yet, curiously, prior to 1988, tribal interests won slightly more than half of their cases. What changed?

In this Article, I attempt to answer this question. I will show that the Court identifies important, unrelated constitutional concerns that arise often in Indian law cases – issues with which they and their clerks are familiar – and then decides those matters. Only afterward, and mostly as an afterthought, does the Court then turn to the federal Indian law questions. The Court’s federal Indian law analysis takes a secondary and often inferior role.

The result of this obfuscation is an unrelenting assault on tribal interests before the Court – and the rule of law more generally. In this Article, I offer the first in-depth empirical assessment of the Supreme Court’s recent Indian law decisions and argue in favor of a sweeping change in the means of analyzing Indian law. Instead of focusing on the Indian law questions, this Article shows how major Indian law cases were decided on other grounds to significant tribal disadvantage. Analyzing federal Indian law in this manner makes transparent the Court’s frightening disrespect for the rule of law.