Supreme Court

SCOTUSblog Highlights New Scholarship on the Certiorari Process

Matthew L.M. Fletcher

From SCOTUSblog (Amanda Frost):

The Supreme Court today has nearly complete discretion over its docket—too much discretion, some argue.  In a world in which the Court grants only about one percent of the 8000 or so petitions it receives each year, the process of “deciding to decide” is almost as important as the Court’s rulings on the merits, and yet the public knows almost nothing about how such decisions are made.

In a forthcoming article in the University of Pennsylvania Law Review, Professor Kathryn Watts argues in favor of incorporating principles of administrative law into the Court’s case selection process.  She notes that congressional delegations of power to agencies are constrained by public participation, reason-giving, transparency, and the agency’s political accountability, but that none of these factors limit the Supreme Court when selecting cases.

To improve the process, Professor Watts suggests that the Justices be required to publicly disclose their votes at the cert stage.  Doing so might inspire the Justices to explain their decisions in important cases, in part to avoid the impression that the vote indicates the Justices’ views on the merits.  Furthermore, such a rule could lead the Justices to supervise more closely the work of their law clerks, whom many view as exercising too much control over case selection.  Finally, vote disclosure might give the general public, as well as practitioners, a better sense of how the Court makes these all-important decisions.

In a similar vein, Professor Watts suggests that cert. petitions themselves be made publicly available on the Supreme Court’s website.  She hopes that this would lead to more participation by a broader array of amici at the cert. stage, which would better inform the Court’s case selection process.

Finally, Professor Watts adds her voice to that of Professor Amanda Tyler in calling for increased use of the certification process.  Although the law currently allows the federal courts of appeals to certify questions of law to the Supreme Court, the practice is rare.  As both Professors Watts and Tyler argue, the benefit of certification is that it gives the lower courts a role to play in choosing issues for Supreme Court review, adding a fresh perspective to what has become an insular and secretive process.

Judicial Minimalism in Indian Law — The Roberts Court

Matthew L.M. Fletcher

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.

  1. 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.
  2. 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.
  3. 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).
  4. 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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United States v. Eastern Shawnee Tribe GVR’d

Matthew L.M. Fletcher

As expected, the Supreme Court granted cert in United States v. Eastern Shawnee Tribe of Oklahoma for the purpose of vacating the Federal Circuit’s decision and remanding to that court for reconsideration in light of United States v. Tohono O’odham Nation.

SCOTUSblog commentary on US v. TON — “Apparent Disregard for Judicial Minimalism”

Matthew L.M. Fletcher

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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New Book on California v. Cabazon Band of Mission Indians

Matthew L.M. Fletcher1 Comment

Ralph A. Rossum has published, “The Supreme Court and Tribal Gaming: California v. Cabazon Band of Mission Indians,” as part of Landmark Law Cases and American Society series from the University of Kansas Press. 

Here is the press’s blurb:

When the Cabazon Band of Mission Indians—a small tribe of only 25 members—first opened a high-stakes bingo parlor, the operation was shut down by the State of California as a violation of its gambling laws. It took a Supreme Court decision to overturn the state’s action, confirm the autonomy of tribes, and pave the way for other tribes to operate gaming centers throughout America.

Ralph Rossum explores the origins, arguments, and impact of California v. Cabazon Band of Mission Indians, the 1987 Supreme Court decision that reasserted the unique federally supported sovereignty of Indian nations, effectively barring individual states from interfering with that sovereignty and opening the door for the explosive growth of Indian casinos over the next two decades.

Rossum has crafted an evenhanded overview of the case itself—its origins, how it was argued at every level of the judicial system, and the decision’s impact—as he brings to life the essential debates pitting Indian rights against the regulatory powers of the states. He also provides historical grounding for the case through a cogent analysis of previous Supreme Court decisions and legislative efforts from the late colonial period to the present, tracking the troubled course of Indian law through a terrain of abrogated treaties, unenforced court decisions, confused statutes, and harsh administrative rulings.

In its decision, the Court held that states are barred from interfering with tribal gaming enterprises catering primarily to non-Indian participants and operating in Indian country. As a result of that ruling—and of Congress’s subsequent passage of the Indian Gaming Regulatory Act—tribal gaming has become a multibillion dollar business encompassing 425 casinos operated by 238 tribes in 29 states. Such enormous growth has funded a renaissance of reservation self-governance and culture, once written off as permanently impoverished.

As Rossum shows, Cabazon also brings together in one case a debate over the meaning of tribal sovereignty, the relationship of tribes to the federal government and the states, and the appropriateness of having distinctive canons of construction for federal Indian law. His concise and insightful study makes clear the significance of this landmark case as it attests to the sovereignty of both Native Americans and the law.

“Some view Cabazon as an emphatic ruling supporting tribal sovereignty, while others see it as a deeply compromised decision that elevated state government’s role in internal native affairs. Rossum deftly situates the case historically, legally, and culturally, and persuasively argues that this is one of the more important decisions ever handed down by the High Court.”—David E. Wilkins, author of American Indian Sovereignty and the U.S. Supreme Court

“Rossum’s well researched book hits all the crucial topics and deals comprehensively with a host of complex issues in a clear, concise, and interesting manner. I wholeheartedly endorse it.”—Alexander Tallchief Skibine, S.J. Quinney Professor of Law, University of Utah

RALPH A. ROSSUM is Salvatori Professor of American Constitutionalism at Claremont McKenna College and author of Antonin Scalia’s Jurisprudence, also from Kansas.

Patricia Millett and James Meggesto Commentary on the Tohono O’odham Decision

Matthew L.M. Fletcher1 Comment

Download a pdf here (Tohono Oodham Nation decision analysis).

Here is the text:

Yesterday, the Supreme Court issued its decision in United States v. Tohono O’odham Nation, No. 09-846. The Court, by a vote of 5-2-1 (Justice Kagan recused) reversed the decision of the Court of Appeals for the Federal Circuit, and held that the Court of Federal Claims lacked jurisdiction over the Tohono O’odham Nation’s claims for monetary relief on its trust mismanagement claims. Justice Kennedy delivered the opinion of the Court, which was joined by Chief Justice Roberts and Justices Scalia, Thomas, and Alito. Justice Sotomayor issued an opinion concurring in the judgment that was joined by Justice Breyer. Justice Ginsburg filed a dissenting opinion. Justice Kagan took no part in the decision as she was the Solicitor General during earlier proceedings in the case.

The case arose when the Tohono O’odham Nation filed back-to-back lawsuits seeking relief for numerous violations of trust and fiduciary obligations with respect to assets held in trust by the federal government. The Nation first filed suit in the United States District Court for the District of Columbia against the United States, seeking primarily equitable relief, including an accounting. That complaint also sought equitable monetary relief in the form of disgorgement and restitution. The next day, the Nation filed a second lawsuit in the Court of Federal Claims (CFC) seeking monetary damages for mismanagement of the same trust assets.

The Court of Federal Claims dismissed the action under 28 U. S. C. §1500 for want of jurisdiction. Section 1500 provides that:

The United States Court of Federal Claims shall not have jurisdiction of any claim for or in respect to which the plaintiff or his assignee has pending in any other court any suit or process against the United States or any person who, at the time when the cause of action alleged in such suit or process arose, was, in respect thereto, acting or professing to act, directly or indirectly under the authority of the United States.

The Court of Federal Claims held that the factual underpinnings for the Nation’s suit before it and the separate suit pending in federal district court were “for all practical purposes identical.” 79 Fed. Cl. 645, 656 (2007).

The Court of Appeals for the Federal Circuit reversed and held that the CFC retained jurisdiction because the two lawsuits sought distinct forms of relief. 559 F. 3d 1284 (2009). The Federal Circuit held that Section 1500 bars relief only if the claims in the two lawsuits both share operative facts and also seek overlapping relief. Because the court found no overlap in the relief the Nation requested from the two courts, the court of appeals held that the action was not barred by Section 1500.

The Supreme Court has now reversed, significantly limiting the ability of claimants—whether Tribes, government contractors, or property owners challenging unconstitutional takings—to obtain full relief against the United States government for the government’s violations of the law. The Supreme Court held that “[t]wo suits are for or in respect to the same claim, precluding jurisdiction in the CFC, if they are based on substantially the same operative facts, regardless of the relief sought in each suit.” Slip Op. at 9 (emphasis added). In so holding, the Court acknowledged that “in respect to a claim” could mean facts alone or facts coupled with some overlapping relief. The Court held, however, that the former interpretation was “more reasonable,” pointing to Congress’s provision in the next clause that the CFC would also lack jurisdiction over claims against “any person who, at the time when the cause of action alleged in such suit or process arose, was, in respect thereto, acting or professing to act, directly or indirectly under the authority of the United States.” 28 U. S. C. §1500. “Acting” “in respect to a cause of action,” the Court concluded, only made sense with respect to factual overlap because it referred to the timeframe before suit was even filed. Individuals cannot “act[]” in respect to particular forms of relief before litigation commences, the Court explained. Thus, the Court concluded, if the phrase “in respect to a cause of action” does not “embrace the concept of remedy, it is reasonable to conclude that” the similarly worded phrase “for or in respect to” a claim does not “embrace the concept of remedy” either. Slip Op. at 5.

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AP News Coverage of U.S. v. TON Opinion

Matthew L.M. Fletcher

Here.

Preliminary Thoughts on Jicarilla Oral Argument

Matthew L.M. Fletcher

Today, the Court heard arguments in United States v. Jicarilla Apache Nation (transcript here). Pratik Shah (6 prior arguments before the Court) argued for the government, and Steven Gordon (1 prior oral argument) argued for the Nation.

Justice Sotomayor throughout the argument challenged the government on its claims. Early on she asked the government’s advocate on whether the government had a “competing sovereign interest” in not disclosing the relevant documents (tr. at 4). She also asked:

Just explain to me what’s the rationale that would permit a trustee of a trust fund to withhold from the beneficiary the kinds of documents that relate to the management of the trust fund? If the fund exist for the benefit of the Indian tribe, why aren’t they entitled to management documents? (tr. at 5)

At another point, when the government advocate noted that “when Congress uses the term ‘trust’ in the Indian context, that there must be specific statutory regulatory duties that the Court sets out.” (tr. at 7. To which Justice Sotomayot responded, :

You’re not seriously suggesting that if you’re a trustee of an Indian fund that you can breach your fiduciary duty by simply not exercising care in your investment strategies. (tr. at 7-8)

The government’s advocate then reiterated a key position of the government:

The two statutes you’re talking about, 161a and 162a, set forth specific investment duties. They don’t say anything about disclosure. … The United States must provide an account statement, a quarterly account statement; and the United States must provide the Indian tribes and individual Indians an annual audit. That is the extent of disclosure that Congress has set forth and that the Interior Department by regulation has implemented. (tr. at 8-9)

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Oral Argument Transcript in United States v. Jicarilla Apache Nation

Matthew L.M. Fletcher1 Comment

Here.

Supreme Court Holds States are Immune from Money Damages under RLUIPA

Matthew L.M. Fletcher

This is a big deal for American Indians asserting religious freedom claims against state governments.

Here is today’s opinion in Sossamon v. Texas, authored by Justice Thomas.

From the Court’s syllabus:

After this Court held that the Religious Freedom Restoration Act of 1993 was unconstitutional as applied to state and local governments because it exceeded Congress’ power under §5 of the Fourteenth Amendment, see City of Boerne v. Flores, 521 U. S. 507, Congress passed the Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA) pursuant to its Spending Clause and Commerce Clause authority. RLUIPA targets two areas of state and local action: land–use regulation, RLUIPA §2, 42 U. S. C. §2000cc, and restrictions on the religious exercise of institutionalized persons, RLUIPA §3, §2000cc–1. It also provides an express private cause of action for “appropriate relief against a government,” §2000cc–2(a), including, inter alia, States, their instrumentalities and officers, and persons acting under color of state law, §2000cc–5(4)(A).

Petitioner Sossamon, a Texas prison inmate, sued respondents, the State and prison officials, seeking injunctive and monetary relief under RLUIPA for prison policies that prevented inmates from attending religious services while on cell restriction for disciplinary infractions and that barred use of the prison chapel for religious worship. Granting respondents summary judgment, the District Court held that sovereign immunity barred Sossamon’s claims for monetary relief. The Fifth Circuit affirmed, holding that the statutory phrase “appropriate relief against a government” did not unambiguously notify Texas that its acceptance of federal funds was conditioned on a waiver of sovereign immunity to claims for monetary relief.

Held: States, in accepting federal funding, do not consent to waive their sovereign immunity to private suits for money damages under RLUIPA.