Flap over the SG’s Briefs (Indian Country Implications? Nah.)

Here, from SCOTUSblog is a description of the issue:

In a ruling that the Justice Department is seeking to delay while it appeals, a federal judge has concluded that the federal government’s lawyers in the Supreme Court may have misled the Justices three years ago in efforts to win a key case on the rights of non-citizens facing deportation from the U.S.   The New York judge rejected all of the government’s arguments for refusing to disclose significant parts of four pages of e-mail exchanges within the Solicitor General’s office about a policy claim they had made in the government’s brief in the Supreme Court case ofNken v. Holder, decided nearly three years ago.  The new ruling by U.S. District Judge Jed S. Rakoff of New York City can be found here.

We here in the ILPC suite wondered whether this would be a big deal in an Indian law case. [We’re betting the Jicarilla attorneys have a view on this, though that case didn’t involve the SG so much.] But we are reminded by the SG’s lodging of documents in the Carcieri case that helped to form the heart of Justice Thomas’s majority opinion:

Furthermore, the Secretary’s current interpretation is at odds with the Executive Branch’s construction of this provision at the time of enactment. In correspondence with those who would assist him in implementing the IRA, the Commissioner of Indian Affairs, John Collier, explained that:

“Section 19 of the Indian Reorganization Act of June 18, 1934 (48 Stat. L., 988), provides, in effect, that the term ‘Indian’ as used therein shall include—(1) all persons of Indian descent who are members of any recognized tribe that was under Federal jurisdiction at the date of the Act … .” Letter from John Collier, Commissioner, to Superintendents (Mar. 7, 1936), Lodging of Respondents (emphasis added).

Of course, there’s a big difference between what Judge Rakoff found and this, to be sure. Moreover, we’re pretty sure all the parties were aware of this document or similar documents long before the SG lodged John Collier’s letter with the Court. In fact, this is probably an instance where the SG was being completely honest. But still! Man! C’mon!


Commentary on Supreme Court’s Denial of Oneida Land Claims Petitions

Two things immediately spring to mind on the denial of the Oneida land claims petitions.

The first is that the federal government’s persuasive oomph (with the OSG as the so-called “Tenth Justice”) loses a ton of force when siding with tribal interests. No big surprise to me there. But it must be a little strange for the Justices to see the United States so vehemently demanding to be let off the hook for their breaches of trust toward Indian tribes in Tohono O’odham and Jicarilla and almost in the same breath ask for the Court to review Indian land claims dismissals. The government’s filings before the Court in Indian affairs are two-sided, even a little schizophrenic.

Second, Justice Ginsburg seems to be stepping in Justice Stevens’ role as the the most senior Justice with an interest in limiting the damage to tribal interests in the Supreme Court. And like Justice Stevens, she wrote some negative opinions against tribal interests. But her earlier opinions appear to have swaths of broad dicta that lower courts and the Supreme Court are now leaping at in order to reject more recent tribal claims. I’m thinking of her opinion in Strate, which technically applied only to non-Indian lands on reservation, which Justice Scalia attempted to expand to Indian lands in Hicks; and also now her opinion in Sherrill, which was ostensibly about taxation immunities but now applies broadly (at least in the Second Circuit) to all tribal land claims. Both times she appears to be trying to reel in the Court in applying her dicta in earlier cases, and both times unsuccessfully.

Also, Justice Sotomayor backs up her statement about Indian law being a focus for her.

SCOTUSBlog: Former SGs and the Supreme Court Bar

From SCOTUSBlog:

Former SCOTUSblog intern Matthew Sundquist discusses the effects that former Solicitors General have had on the development of a specialized Supreme Court bar.

Until recently, Matt Sundquist was a Fulbright Scholar in Argentina.  He is  a graduate of Harvard College and was an intern for SCOTUSblog in the winter of 2009-2010.

As of the end of the Court’s October Term 2009, the past ten former Solicitors General had argued a combined 357 cases.  Recent former Solicitors General have participated in some of the Court’s most significant recent cases: Greg Garre in Christian Legal Society v. Martinez (2010); Seth Waxman and Ted Olson in Citizens United v. FEC (2010); Paul Clement in McDonald v. Chicago (2010); and Walter Dellinger in District of Columbia v. Heller (2008).  Former Solicitors General are in many ways the stars of the Supreme Court bar, heading Supreme Court litigation practices at large firms and handling the briefing and arguments for big cases.  This trend is relatively new: although former Solicitors General from 1952 to 1980 became professors, judges, or private practitioners, and those from the 1980s and early 1990s generally litigated as consultants or independently, the past five former Solicitors General (with the exception of Elena Kagan, who is now a Justice on the Court) manage Supreme Court litigation practices.  In a recent paper in the Charleston Law Review, summarized in this post, I document this trend, explain the advantages that former Solicitors General can offer as litigators, and conclude that a variety of factors – including financial incentives, the rise of a Supreme Court bar, career obstacles, and a demand for sophisticated litigators – facilitated the trend.

Special relationships and responsibilities

Historically, the Solicitor General has had unique relationships throughout government: he (this post will use “he” because all former Solicitors General except for Elena Kagan are male) is appointed by, and serves an advisor to, the executive; he defends laws passed by the legislative branch; and he works primarily in the domain of the judical branch, where he supervises litigation by the government in both the Supreme Court (including amicus filings and oral arguments) and the lower federal courts.  The Solicitor General often plays a unique role at the Court:  he can confess error – even if the government prevailed – if he believes that a lower court decision was wrong, and he may decline to defend a statute that he regards as unconstitutional.  Finally, the Court often relies on the Solicitor General to help it to choose its cases by asking the Solicitor General – in a case in which the United States is not a party – to file a brief expressing the views of the United States.    Over the past four Terms, when the Office of the Solicitor General responded to such a Call for the Views of the Solicitor General (CVSG) by recommending that the Court grant certiorari, the Court agreed a remarkable ninety-seven percent of the time, and it agreed with the Solicitor General’s overall recommendations eighty-six percent of the time.  This unique role and the trust that the Office of the Solicitor General enjoys allows the Solicitor General to hone his lawyering skills and gain the respect of Justices and other repeat players at the Court.

A new trend

Continue reading

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.