NYTs Op-Ed on Supreme Court Nominations

From the NYTs:

Obama’s Choice


With the resignation of U.S. Supreme Court Justice David Souter, Barack Obama is about to make one of the most import appointments any president can make. For picking a justice for the Supreme Court will have more ramifications for the republic than any cabinet secretary or ambassador.

The United States may be a comparatively young country, but its institutions have influenced the world profoundly. The constitutional ideals put forth upon its shores in the late 18th century guided the way other societies organized themselves, from the Déclaration des Droits de l’Homme et du Citoyen in France in 1789, to the Universal Declaration of Human Rights adopted by the United Nations in 1948, to the constitutions of dozens of other countries emerging from colonialism and Communism. From the earliest times, as the historian Samuel Eliot Morison wrote: Liberty to Americans meant, “first freedom under laws of their own making, and, second, the right to do anything that did not harm others.”

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Justice Souter’s Federal Indian Law Legacy

Justice Souter’s retirement at the end of this Term all but demands a recount of his voting record in Supreme Court cases involving federal Indian Law. He was part of the Court for nearly 20 Terms, and voted in 41 Indian law cases (for a list of Indian law cases, see our Supreme Court page). Excluding two votes in cases that are difficult to characterize (Negonsott and Youpee), Justice Souter voted for tribal interests 16 times and against them 23 times.

Several themes run through Justice Souter’s Indian law votes. He usually sided with tribal interests in the areas of treaty rights and treaty interpretation, as well as in trust cases involving the United States as a defendant. He also sided with tribal interests in federalism cases involving the 11th Amendment. But he typically ruled in favor of states and against tribal interests in tax cases, especially after the mid-90s, and in cases involving tribal jurisdiction over nonmembers.

Overall, he left an indelible footprint on federal Indian law. His legacy likely is not yet determinable. He only wrote four opinions for the Court, and six other opinions concurring or dissenting. Justice Souter will probably be best known in Indian law circles for his devastating concurring opinion in Nevada v. Hicks, but his overall record is relatively favorable to tribal interests. And, in our opinion, the Hicks concurrence served as a powerful wake-up call to tribal advocates who hadn’t noticed how far the Court had drifted away from tribal positions.

Justice Souter’s Indian law record can be divided into three loose phases. In the first phase, dating loosely from his first vote in Oklahoma Tax Commission v. Citizen Potawatomi to his powerful dissent in Seminole Tribe (see the Boston Globe article on this case), Justice Souter’s voting record was pretty good — 6 votes in favor of tribal interests and 4 against (excluding a couple cases that could be construed as ties). New-Justice Souter became close to Justice Blackmun in their few years together on the Court, and Justice Souter joined Justice Blackmun’s otherwise-solitary dissents in South Dakota v. Bourland and Hagen v. Utah. He voted three times against the Oklahoma Tax Commission (Citizen Potawatomi, Sac and Fox, and Chickasaw Nation). However, he wrote the majority opinion favoring the Indian Health Service in Lincoln v. Vigil, an administrative law case.

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Boston Globe: Souter Surprised Conservatives with Dissent in Seminole Tribe

From the Boston Globe:

When he was nominated to the Supreme Court in 1990, David H. Souter vowed to uphold the “original intent” of the Constitution, words that his backers interpreted to mean he would join the court’s conservative bloc to support states’ rights and limit the reach of federal power.

But as a Supreme Court justice, Souter has often infuriated his initial supporters by repeatedly siding with the court’s liberal wing on issues from abortion to crime, all the while arguing that the founders would have supported his interpretations.

Indeed, legal scholars said, Souter’s two most significant legacies on the court have been his resistance to the erosion of federal power in the 1990s and his insistence that there need not be a conflict between respecting the founders’ intent and backing liberal causes.

Souter’s writing “shows us you can be an originalist without being a conservative,” said Linda Coberly, a Chicago lawyer and former Supreme Court clerk.

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Empirical Research on Tribal Courts and Customary Law Posted on SSRN

My working paper, “Tribal Courts, the Indian Civil Rights Act, and Customary Law: Preliminary Data,” has been posted on SSRN. Chi-miigwetch to Alicia Ivory for all her hard work in helping with the research (you can see her contributions in the lengthy appendices at the end of the paper).

Here’s the abstract:

This study is an attempt to assess the validity of my theory that tribal courts do not apply “unusually difficult” laws in cases involving nonmembers. I theorized that in most cases (if not the vast, overwhelming majority), tribal courts apply a kind of “intertribal common law,” which consists of the application of tribal statutes that mirror federal and state statutes and the federal and state cases that interpret them.

Of the 120 cases involving an ICRA issue, tribal court judges applied federal and state case law as persuasive (and often controlling law) in 114 cases (95 percent). And, of the six cases in which the tribal court explicitly refused to apply federal or state case law, either the parties involved tribal members in a domestic dispute or else the tribal court held that its interpretation of the substantive provisions of ICRA were stronger or more protective of individual rights than would otherwise be available in parallel federal or state cases.