Supreme Court

Updated Coverage of Coeur d’Alene Tribe Misspelling

Matthew L.M. Fletcher

From How Appealing:

Even the Chief Justice of the United States misspells a case name every now and then: As though further proof that everyone’s human were needed, a reader emails to note that in his dissenting opinion issued today, Chief Justice John G. Roberts, Jr. has misspelled the “Coeur” in the case name Idaho v. Coeur d’Alene Tribe of Idaho as “Couer” some three times. So, the next time you happen to misspell a case name, remember that you’re in good company.

And in early news coverage of today’s ruling, The Associated Press reports that “Court reinstates Va. mental health lawsuit.”

In early 2009, a lovely new federal courthouse opened its doors in Coeur d’Alene, Idaho, as noted in this earlier post. Coincidentally, the Chief Justice visited Idaho in 2009, although according to the University of Idaho College of Law the Chief Justicevisited in person only Boise and Moscow — and appeared in Coeur d’Alene only via compressed video feed.

Update: As of 4:10 p.m. eastern time, the Court has corrected the misspelling in the version of the decision available for download from the Court’s web site. The original version of the opinion containing the misspelling, which was available for download from the Court’s web site earlier today, can be accessed here.

Chief Justice Roberts Misspells Coeur d’Alene Tribe … a few times

Matthew L.M. Fletcher

From How Appealing:

Even the Chief Justice of the United States misspells a case name every now and then: As though further proof that everyone’s human were needed, a reader emails to note that in his dissenting opinion issued today, Chief Justice John G. Roberts, Jr. has misspelled the “Coeur” in the case name Idaho v. Coeur d’Alene Tribe of Idaho as “Couer” some three times. So, the next time you happen to misspell a case name, remember that you’re in good company.

Why Still No Opinion in U.S. v. TON?

Matthew L.M. Fletcher4 Comments

As Acting SG Neal Katyal noted at Fed Bar, it’s the oldest argued case sitting on the Supreme Court’s list of pending cases, and he said that nearly three weeks ago.

Why no opinion yet (oral argument recap here)? Here are our speculative reasons….

  1. The Court is waiting for tomorrow’s oral argument in United States v. Jicarilla Apache Nation. Announcing an Indian law decision right before a second one is argued creates a sense of theatrics. Probably not.
  2. The Court doesn’t want to give too much away in its TON decision before the JAN argument. The cases are not all that similar, except they do involve to some extent the scope of the government’s trust responsibility to Indian tribes. Possible.
  3. The Court is split 4-4 and continues deliberation in hopes that one Justice will switch sides in order to reach a needed fifth vote. Possible, but the Court has issued a few 4-4 decisions already this Term. Just a few though.
  4. Justice Thomas, who is often assigned Indian law opinions in noncontroversial cases (also ones that tribal interests tend to lose 9-0 or 8-1), is working unusually slow this Term.
  5. A major earth-shattering change in Indian law. Not sure how the TON would generate such a result, but who knows?

Daugaard (South Dakota) v. Yankton Sioux Tribe is SCOTUSBlog Petition of the Day

Matthew L.M. Fletcher

Here.

Today’s first petition of the day is:

Title: Daugaard v. Yankton Sioux Tribe
Docket: 10-929
Issue(s): Whether the Act of 1894 disestablished the Yankton Sioux Reservation.

Certiorari stage documents:

United States Reply Brief in U.S. v. Jicarilla Apache Nation

Matthew L.M. Fletcher

Here.

Additional Preliminary Results on Certiorari Study: The Federal Government’s Role

Matthew L.M. Fletcher

As noted before in my certiorari study, tribal interests do very poorly in the certiorari stage of Supreme Court litigation, especially compared to the state interests and private parties that oppose them. But what about the United States, which plays both sides depending on the case? Here are some preliminary stats:

United States as petitioner:

  • 23 petitions, 14 grants, 7 denials
  • 2 petitions pending in 2010 Term
  • 67 percent grant rate (so far)

United States as petitioner, listed whether opposing or supporting tribal interests:

  • 15 petitions opposing tribal interests, 10 grants (67 percent)
  • 6 petitions supporting tribal interests, 4 grants (67 percent)
  • 2 pending petitions opposing tribal interests

So whether the government petitions for or against tribal interests, according to these limited numbers, their success rate is irrelevant — it’s all 67 percent. Of course, 71 percent of the cert petitions oppose tribal interests.

 

Preliminary Results of New Study of Certiorari and Indian Law

Matthew L.M. Fletcher1 Comment

While workshopping what would become my tenure paper, Factbound and Splitless, a fairly direct critique of the certiorari process in relation to Indian law cases, at various law schools and with law professors around the nation, I became aware that former Supreme Court clerks were split on the persuasiveness of my critique (I am not a former clerk). Former clerks who were part of the so-called cert pool were usually not persuaded by my argument that the Supreme Court discriminated against tribal interests at the cert stage (and especially my secondary point that cert pool memos and clerks’ opinions had much influence on the Court), while former clerks not part of the cert pool were more interested (and in some cases overwhelmingly supportive) of my thesis. The big breakthrough for me, I think (though it wasn’t anything I could use in the article), was an admission by a former cert pool clerk who seemed skeptical of my claims as a general matter. After my talk was over most people had left the room, however, she conceded that as a clerk, she had treated tribal cert petitions as being about as important as prisoner habeas petitions. Only when the tribe (same with the prisoners) had won below did she spend additional effort on the cert pool memo because (and I am paraphrasing) tribes weren’t supposed to win.

Key to a study of certiorari is the axiomatic notion that the Court usually (though not always, to be sure) grants cert with an eye toward reversing the lower court. Some 70 percent of Supreme Court decisions are reversals, giving significant weight to this understanding. In short, persuading the Court to grant cert (for most petitioners) is more than half the battle toward prevailing, especially given that fewer than one in twenty cert petitions are granted.

Since the 1986 Term, the Supreme Court has granted review in 68 Indian law cases. [Warning, this is a preliminary study, and the numbers below are subject to change, but not significantly.]

  • The Court has granted 14 out of 21 petitions filed by the United States (67 percent)
  • The Court has granted 33 out of 117 petitions filed by states and state subdivisions (28 percent)
  • The Court has granted 13 out of 151 petitions filed by private, non-Indian parties (8 percent)
  • The Court has granted 7 out of 347 petitions filed by tribal interests (tribes and individual Indians) (2 percent) [six of these grants was accompanied by an invitation brief, an amicus brief, or other brief by the United States recommending a grant — in other words, only 1 tribal petition has been granted without the government’s consent]

In cert oppositions, the same trends hold:

  • When state interests are in opposition to a cert petition, the Court granted 7 out 157 petitions (4 percent)
  • When private parties are in opposition to a cert petition, the Court granted 7 out of 78 petitions (9 percent)
  • When tribal interests are in opposition to a cert petition, the Court granted 45 out of 217 petitions (21 percent)

Continue reading →

Native Wholesale Supply Cert Stage Reply Brief

Matthew L.M. Fletcher

Here:

NWA Reply Brief

Supreme Court Oral Advocates in Indian Law Cases

Matthew L.M. Fletcher

In light of supposition about the relative experience of the oral advocates that the United States utilizes in Indian law cases (more experienced advocates in opposition to tribal interests, less experienced advocates in support of tribal interests), we present Peter Vicaire’s preliminary research on the advocates that have appeared before the Supreme Court in recent decades: SCT Advocates

As with many things, there is some support for this proposition, but nothing conclusive. Here is a list since 2001.

OSG Advocates in Support of Tribal Interests (with number of SCT oral arguments prior to the argument):

Carcieri v. Salazar (2009) — Deanne Maynard (8 prior arguments)

Plains Commerce Bank (2008) — Curtis Gannon (zero prior arguments)

Wagnon (2005) — Edwin Kneedler (100+ arguments)

Sherrill (2005) — Malcomb Stewart (33 prior arguments)

Lara (2004) — Kneedler (100+)

Klamath Water Users (2001) — Malcomb Stewart (21 prior arguments)

Nevada v. Hicks (2001) — Barbard McDowell (8 prior, including 3 Indian law arguments)

Idaho v. US (2001) — David Fredericks (12 prior arguments, later argued for Long Family in PCB)

Atkinson Trading (2001) — Beth Brinkman (17 prior arguments, including 2 Indian law cases)

OSG Advocates in Opposition to Tribal Interests:

Navajo Nation II (2009) — Kneedler

Cherokee Nation v. Leavitt (2005) — Sri Srinivasan (zero)

Inyo County (2003) (opposed tribal position on Section 1983) — Barbara McDowell (14, plus 4 prior Indian law arguments)

Navajo Nation I (2003) — Kneedler

White Mountain Apache (2003) — Gregory Garre (4 prior, including 1 Indian law argument, later became SG under Bush)

Chicksaw Nation v. US (2001) — Ed DuMont (18 prior, including 1 Indian law argument, later nominated for Fed. Cir. by Obama)

NYTs Coverage of SCT Oral Argument “Sparring”

Matthew L.M. Fletcher

Here is the article.

An excerpt:

At other times, Chief Justice Roberts must play the role of air traffic controller, trying to make sure his colleagues’ questions land one at a time without crashing into one another.

In November, at an argument over prison crowding in California, Justice Sotomayor jumped in while Justice Ginsburg was in the middle of a question.

“I’m sorry,” Chief Justice Roberts told the perplexed lawyer. “Could you answer Justice Ginsburg’s question first?”

Something similar happened at an argument over state secrets in January.

“Did the contract — ” Justice Kennedy started, just as Justice Sotomayor entered the fray.

“Counsel, you can’t ever give — ” she said.

Chief Justice Roberts made the call. “Justice Kennedy,” he said. After that exchange was complete, he said, “And now Justice Sotomayor.”

Something important is being lost in these rapid-fire exchanges, Mr. Wermiel said.

“A lawyer arguing a case may be only a few words into answering a multipart question from one justice before another justice interrupts to take the argument in a different direction entirely,” he said. “Some arguments now more closely resemble a Ping-Pong match than a dialogue or conversation.”