Supreme Court

New Scholarship on the Ethics of Opposing Certiorari

Matthew L.M. Fletcher

Aaron Tang recently (ok, in June) posted, “The Ethics of Opposing Certiorari Before the Supreme Court,” a paper he published in the Harvard Journal of Law and Public Policy.

Here is the abstract:

As the Supreme Court’s docket grows smaller and an emerging class of “Supreme Court experts” snags a greater portion of that docket with every passing year, the value associated with each rare opportunity to argue before the Court continues to rise. The rising value has driven the legal academy to pay greater attention to the arduous process of persuading the Court to take on a case through its certiorari review. Elite Supreme Court practices have focused on the certiorari process as well, because the number of merits cases to which they will have access — and substantial fees — ride on the success of the petitions for certiorari they file. The stakes have gotten so high with respect to the Court’s decisions on “cert” petitions that the popular website SCOTUSblog now has a regular “petitions to watch” column discussing certiorari petitions with a high chance of being granted and conducts live chats on mornings when the Court issues orders to provide instant analysis on newly granted cases.

Persuading the Court to grant a petition for certiorari, however, is not the only way for an advocate to land an elusive Supreme Court oral argument. After all, the attorneys who prevail at the petition for certiorari stage take on only half of the sum total of oral arguments available. The other half belongs to the attorneys who lose at the petition stage and who, as a result, will be called before the Court to defend the merits of the judgment below. This Article’s core premise is that greater attention must be paid to this set of Supreme Court oral advocates and the incentives they face. Attorneys who lose at the opposition stage may nevertheless enjoy a personal “win” in the form of an opportunity to argue at the Supreme Court. As a result, there is the potential for an ex ante ethical dilemma for attorneys tasked with opposing certiorari. This dilemma, in turn, might well have important downstream effects on clients who prevailed below and who, unlike their attorneys, would therefore prefer not to be in the Supreme Court at all. This Article analyzes the potential ethical dilemma in opposing certiorari before the Supreme Court, relying chiefly on survey responses from more than one hundred Supreme Court practitioners.

Worth a read for tribal attorneys looking for Supreme Court counsel to defend a cert petition.

Mark Killenbeck on the History of the Commerce Clause

Matthew L.M. Fletcher

Mark Killenbeck, author of several excellent legal histories, including one on M’Culloch v. Maryland and another on the Tenth Amendment, has posted his short history of the Interstate Commerce Clause, “A Prudent Regard to Our Own Good? The Commerce Clause, in Nation and States.”

Here is the abstract:

This lecture was delivered on May 23, 2012, as part of the Supreme Court Historical Society’s annual Leon Silverman Lecture Series. My goal was to discern what key founders envisioned when they crafted and approved the Commerce Clause and explore how it has been interpreted and applied by the Court. I take as my starting point themes struck by James Madison in his Vices of the Political system of the U. States, in which he noted a “want of concert in matters where the common interest requires it,” a flaw “strongly illustrated in the state of our commercial affairs,” to the point that “the national dignity, interest, and revenue [have] suffered from this cause.” Madison’s lament was not, however, about the need to guard against an overbearing federal government. Rather, he was concerned about the corrosive effects of a “a mistaken confidence” in “the justice, the good faith, the honor, the sound policy, of . . . several legislative assemblies” whose actions were marked by “caprice, jealousy, and diversity of opinions.” Madison also counseled against excessive reliance on interpretations grounded solely in the drafting and ratification debates, speaking of the need to “liquidate and ascertain” meaning over time, recognizing, as did Chief Justice John Marshall, that the Constitution was “intended to endure for ages to come, and consequently, to be adapted to the various crises of human affairs.” A close and careful reading of both Madison and Marshall – in particular, Marshall’s opinion for the Court in Gibbons v. Ogden (1824) – suggests, accordingly, that sharp departures from the original understanding of the Commerce Clause occurred long before Wickard v. Filburn (1942), and that there is substantial support for an expansive reading of the nature and scope of the commerce power in the words and intentions of the founders.

 

Expect Cert Petition in Kim Craven Appeal to Cobell Settlement Next Week

Matthew L.M. Fletcher4 Comments

Here.

Here are the musings of Ted Frank (Kim’s former attorney) on the D.C. Circuit decision.

UPDATE: Apparently, Rob C. at ICT has the draft, and published most of the details here.

Arizona Cert Petition in Voter ID/Citizenship Case

Matthew L.M. Fletcher1 Comment

Here is the cert petition and the case is now captioned Arizona v. Inter Tribal Council of Arizona:

Arizona Cert Petition

Question Presented:

Did the court of appeals err 1) in creating a new, heightened preemption test under Article I, Section 4, Clause 1 of the U.S. Constitution (“the Elections Clause”) that is contrary to this Court’s authority and conflicts with other circuit court decisions, and 2) in holding that under that test the National Voter Registration Act preempts an Arizona law that requests persons who are registering to vote to show evidence that they are eligible to vote?

Lower court opinion here.

Cert Opposition Brief in Suit against Puyallup Police

Matthew L.M. Fletcher

Here:

Young v Fitzpatrick Cert Opp

The petition is here.

US v. Samish — SCOTUSblog Petition of the Day

Matthew L.M. Fletcher1 Comment

Here.

Public Opinion and Judicial Ideology

Matthew L.M. Fletcher

Interesting research on how public opinion and judicial ideology clash. This new paper suggests that the Roberts Court, while pretty conservative, may still be less conservative than the American public. That’s pretty interesting stuff.

I’d like to see more information about Supreme Court decisions in Indian law cases and public opinion. For example, how do people really feel about Indian gaming? Are they “gaming” people or are they “gambling” people, like Justice Scalia?

The questions should pertain to specific cases, I think, to be useful. How does the public feel about KG Urban’s challenge to the Massachusetts gaming law? Or about tribal criminal jurisdiction over serial DV and sex offenders?

Maybe the SCT would deny this information is valuable, but I think it would be terribly helpful.

Thanks to the Monkey Cage crew.

Supreme Court Denies Cert in Corboy v. Louie (Native Hawaiian-Related Petition)

Matthew L.M. Fletcher

Here, page 11 of the order list.

The Court had CVSG’d this petition, and the SG recommended denial.

Health Care Mandate Upheld

ilpc1 Comment

Opinion here  (or here: 11-393c3a2).

The law includes the Indian Health Care Improvement Act, which apparently still stands as well. Tribal amicus brief is here.

Ironies of the Patchak Decision

Matthew L.M. Fletcher2 Comments

Here are some interesting ironies of the reasoning and outcome in Patchak.

First, the prudential standing of David Patchak to sue the federal government to protect the rural character of his community (and related objections) — under Michigan law (I think) Patchak would have a much more difficult proof than he does under the conglomeration of statutes Patchak is using (APA, QTA, and I guess IGRA). Just a few weeks ago, the Michigan Court of Appeals (Tobin v City of Frankfort — thanks to B.A. for pointing this one out for me) rejected the standing of a landowner to challenge a development in Benzie County. Here were the injuries complained of:

Intervenor argues that it has established through its members’ affidavits that it has standing to intervene and pursue its member’s claims. The relevant declarations by FOBB members in their September 2000 affidavits primarily detail concerns about (1) increases in population, traffic, noise levels, lights, air pollution, and property taxes; (2) decreases in home values, aesthetics of the neighborhood, and environmental value caused by tree and vegetation removal attributable to the development; and (3) the potential presence of commercial establishments. The generalized concerns relating to environmental impacts, population increases, aesthetics, and pecuniary harm do not suffice to demonstrate “special damages . . . different in kind from those suffered by the community, so as to qualify [intervenor] as an aggrieved party.” Joseph, 5 Mich App at 571. Alternately phrased, development-related aesthetic changes, population increases, environmental impacts, and pecuniary harm will be experienced by other community members to the same extent as affiants.

But that’s not prudential standing, you say. True, but what an irony. This is Patchak’s list of alleged injuries in a nutshell:

To establish his standing to bring suit, Patchak contended that he lived “in close proximity to” the Bradley Property and that a casino there would “destroy the lifestyle he has enjoyed” by causing “increased traffic,” “increased crime,” “decreased property values,” “an irreversible change in the rural character of the area,” and “other aesthetic, socioeconomic, and environmental problems.”

Justice Kagan’s majority opinion then uses the Cohen Handbook as support for the proposition that since Interior takes land into trust for the benefit of Indian tribes (often economic benefit), then anyone seemingly opposed to tribal economies has standing (sorry for the long block quote):

Patchak’s suit satisfies that standard, because §465 has far more to do with land use than the Government and Band acknowledge. Start with what we and others have said about §465’s context and purpose. As the leading treatise on federal Indian law notes, §465 is “the capstone” of the IRA’s land provisions. F. Cohen, Handbook of Federal Indian Law §15.07[1][a], p. 1010 (2005 ed.) (hereinafter Cohen). And those provisions play a key role in the IRA’s overall effort “to rehabilitate the Indian’s economic life,” Mescalero Apache Tribe v. Jones, 411 U. S. 145, 152 (1973) (internal quotation marks omitted). “Land forms the basis” of that “economic life,” providing the foundation for “tourism, manufacturing, mining, logging, . . . and gaming.” Cohen §15.01, at 965. Section 465 thus functions as a primary mechanism to foster Indian tribes’ economic development. As the D. C. Circuit explained in the MichGO litigation, the section “provid[es] lands sufficient to enable Indians to achieve self-support.” Michigan Gambling, 525 F. 3d, at 31 (internal quotation marks omitted); see Morton v. Mancari, 417 U. S. 535, 542 (1974) (noting the IRA’s economic aspect). So when the Secretary obtains land for Indians under §465, she does not do so in a vacuum. Rather, she takes title to properties with at least one eye directed toward how tribes will use those lands to support economic development.

So in Michigan, someone who objects to development can’t sue because no one has adopted a statute specifically authorizing such development. In Indian law, someone who objects to tribal development can sue because Congress specifically did adopt a statute authorizing land purchases. The fact that Section 5 exists to remedy incredible tribal land dispossession and poverty is irrelevant.

Second, the land development question — Gun Lake Casino is up and running, and the State of Michigan and the local units of government (well, and the Tribe), are raking in millions upon millions. Patchak wants that to end (because apparently he didn’t care that Wayland’s football players were under a pay-to-play arrangement; more details here).

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