Supreme Court

NYTs on the Increasing Importance (and Criticism) of the “Supreme Court Bar”

Matthew L.M. Fletcher

From the NYTs:

umberto Fernandez-Vargas, deported to Mexico, had run out of options. A federal appeals court said he could not return to the United States to live with his American wife and son. And his lawyer did not have the expertise or money to pursue the case further.

Then the cavalry arrived. Leading lawyers from around the country, sensing that the case was one of the rare ones that might reach the Supreme Court, called to offer free help. Mr. Fernandez-Vargas’s immigration lawyer was delighted, and he chose a lawyer from a prominent firm here.

But there was a catch, and then a controversy. The catch was that the Washington lawyer, David M. Gossett, would take the case only if he could argue before the Supreme Court himself.

The controversy was that groups representing immigrants were furious, suspicious of the new lawyer’s interest in the case and fearful of a Supreme Court ruling that would curtail the rights of immigrants nationwide.

Indeed, Mr. Gossett faced a barrage of hostile questions from the justices, and in June 2006 the court ruled against his client, 8 to 1. The ruling wiped out decisions in much of the nation — notably from the federal appeals court in California — that had favored immigrants.

Mr. Gossett is among an increasingly influential cadre of lawyers specializing in Supreme Court cases, attracted to the importance and intellectual challenge of the work. Many are willing to serve without charge to draw prestige and paying clients to their firms.

Thirty years ago, 6 percent of cases accepted by the court were brought by lawyers specializing in Supreme Court advocacy, according to data compiled by Richard J. Lazarus, a law professor at the Georgetown University Law Center and faculty director of its Supreme Court Institute.

Continue reading →

A Note on SCOTUSBlog

Matthew L.M. Fletcher3 Comments

Readers of Turtle Talk may wonder why we link to SCOTUSblog so frequently.

We do so for various reasons, but always with trepidation. First, without doubt, SCOTUSblog is the most widely-read blog on the Supreme Court in the known universe. The authors tend to be experienced Supreme Court practitioners and observers, and they are usually non-partisan in their commentaries. As a result, recent chatter on the internet suggests that current Supreme Court clerks, when at a loss to determine what cases are certworthy, look to SCOTUSblog for guidance (and possible other blogs). We think it is critically important that Indian Country knows when SCOTUSblog is paying attention to a particular petition. It is more likely than not that someone in the Supreme Court’s chambers is paying attention, too.

Second, on some occasions, we have posted a link to SCOTUSblog commentary with critical commentary of our own. My experience with studying cert pool memos indicated to me that, on a few occasions, the clerks simply get the law wrong. Many times, for financial or strategic reasons, tribal interests who are respondents to cert petitions do not file an opposition to the cert petition (or are limited in their capacity to raise all the relevant arguments). We don’t know if Turtle Talk is read by Supreme Court clerks, but if it is, there will at least be an informal, occasional cert opposition out there.

Continue reading →

Why Justice Kennedy Could Be the Most Important Justice in the 2010 Term in Indian Law Cases

Matthew L.M. Fletcher3 Comments

Today, Michigan State University’s Indigenous Law and Policy Center hosts its Seventh Annual Indigenous Law Conference, “Persuasion and Ideology: Politically Divisive Cases in Appellate Courts.”

My talk today is titled, “The Elusive Fifth Vote.” The idea for this talk derives from exchanges I had with Phil Frickey after the Supreme Court decided Plains Commerce Bank 5-4 in 2008. We had talked about co-authoring a paper with the hope of identifying a fifth vote in favor of tribal interests in a future case. Unfortunately, Phil walked on before we could write this paper.

The longer paper will focus on the five Justices that voted against tribal interests in Plains Commerce Bank. While the composition of the Court has changed since this case, the five Members in the majority remain on the Court. They are Chief Justice Roberts, and Justices Scalia, Kennedy, Thomas, and Alito. Interestingly, the toughest questioning in the PCB case came from Justice Scalia to the Bank’s attorney Paul Banker, who had no answer as to why the Bank (which had drafted the loan documents at issue) never made clear what the proper venue (state or tribal) would be in a foreclosure action. Regardless, Scalia joined Chief Justice Roberts majority opinion.

These five Justices form a block that is a tough nut to crack in many cases. Four of them are truly reliable votes in virtually all constitutional law cases, with Justice Kennedy the only one of the five likely to stray on occasion. This, of course, puts Justice Kennedy in the apparent role of swing vote, even if he is really a very conservative Justice.

But Justice Kennedy isn’t necessarily a swing vote in Indian law cases. As part of the preliminary research into the paper, Phil and I concluded Kennedy voted against tribal interests even more than Scalia. Moreover, we don’t have much of a track record to go on in regards to Chief Justice Roberts and Justice Alito.

Nonetheless, at least for this Term, my suspicion is that Justice Kennedy will be the most important Justice in the Indian law cases (I’m assuming there will be more than one) in this Term.

Continue reading →

SCOTUSBlog Lists U.S. v. Jicarilla Apache as a Petition of the Day

Matthew L.M. Fletcher1 Comment

From SCOTUSBlog:

Today’s second petition of the day is:

Title: United States v. Jicarilla Apache Nation
Docket: 10-382
Issue(s): Whether the attorney-client privilege entitles the United States to withhold from an Indian tribe confidential communications between the government and government attorneys implicating the administration of statutes pertaining to property held in trust for the tribe.

Certiorari-Stage Documents:

NARF Press Release on the Supreme Court’s Denial of Cert in the Kaltag Tribal Council Case

Matthew L.M. Fletcher

Here: Kaltag press release

Supreme Court Update: Iron Thunderhorse v. Pierce CVSG

Matthew L.M. Fletcher

Today’s order list is here.

The Supreme Court asked for the views of the Solicitor General in Iron Thunderhorse v. Pierce, a Religious Land Use and Institutionalized Persons Act case.

In nice news for Indian Country, the Supreme Court denied cert. in Gould v. Cayuga and Hogan v. Kaltag Tribal Council. Both cases had appeared as petitions to watch, and the Supreme Court had previously CVSG’d the Kaltag (the OSG recommended denial of the petition).

Petitions denied included the challenge to the tobacco Master Settlement Agreement (Maybee v. Idaho), and Schagticoke’s challenge to the denial of its federal recognition (Schaghticoke v. Salazar), Fort Peck v. HUD, Hoffman v. Sandia, and Metlakatla v. Sebelius.

NYTs Editorial on “First Monday”

Matthew L.M. Fletcher

From the NYTs:

The Supreme Court enjoys all but free rein in selecting which cases to review. From the end of one term in the summer until the start of the next, on the first Monday in October, the work of the court is to sift through thousands of petitions from parties that lost in one of the federal appeals courts or highest state courts and are eager for the justices to reverse their fate.

The kinds of petitioners favored say a lot about the court’s interests and biases. The Warren court, eager to champion individual rights, chose a large number of petitions from downtrodden people. The Rehnquist court, looking for opportunities to vindicate states’ rights, favored petitions from the states.

The Roberts court has championed corporations. The cases it has chosen for review this term suggest it will continue that trend. Of the 51 it has so far decided to hear, over 40 percent have a corporation on one side. The most far-reaching example of the Roberts court’s pro-business bias was Citizens United v. Federal Election Commission. By a 5-to-4 vote, the conservative justices overturned a century of precedent to give corporations, along with labor unions, an unlimited right to spend money in politics.

Continue reading →

Suquamish Reply Brief in Support of Its Cert Petition

Matthew L.M. Fletcher

Here: Suquamish Reply in Support of Cert Petition

ACLU Voting Rights Project Cert Petition in Cottier v. City of Martin

Matthew L.M. Fletcher

Here. Lower court materials here.

Questions presented:

1. Was the district court’s original finding that the plaintiffs had not established one of the threshold factors for a finding of vote dilution under Section 2 of the Voting Rights Act, 42 U.S.C. § 1973, properly before the Eighth Circuit upon review of a superseding final judgment in the plaintiffs’ favor after remand from a prior panel?
2. Is statistical evidence necessary to prove legally significant racially polarized voting under Thornburg v. Gingles, 478 U.S. 30 (1986)?
3. Do minority voters have an equal opportunityto elect aldermen and alderwomen of their choice when the evidence shows that minority voters have had some success in electing their preferred candidates—but only in nonmunicipal elections, when “minority” voters constitute a majority of the electorate, or when their preferred candidates are white?

New Cert Petition re: Tribal Court Jurisdiction (Sorta)

Matthew L.M. Fletcher

Here is the petition in Glacier Electric Cooperative, Inc. v. The Estate of Scott Sherburne: Glacier Electric Cert Petition.

Questions presented:

[T]he question presented is whether preclusion of the issue of tribal subject matter jurisdiction to hear a case bars the federal courts from considering whether Respondents may enforce in tribal court the relief they were granted there – a substantial money judgment – despite the lack of due process at the trial.

The Ninth Circuit’s summary disposition is here.