Supreme Court – Page 134

Carcieri, the Word “Now,” and Fortune Cookies in the George Mason Law Review

September 7, 2010Matthew L.M. Fletcher

Jeremy Graboyes has published, “Now, Voyager: Deixis and the Temporal Pragmatics of Statutes,” in the George Mason Law Review.

An excerpt:

You come across a fortune cookie. The fortune inside reads: “The plans you now have are going to succeed.” Unsure when now is, you are left wondering which of your goals will be successful. There are three possibilities. First, now references some fixed point in the past—be it the moment the fortune was first conceived, printed, enclosed in its cookie, or shipped from the factory. All goals you had at that moment will be successful, but you have no guarantees as to goals made later in time, including goals at the time of reading the fortune. Second, now references the moment you first read your fortune. All goals you have at that moment will be successful, but you have no guarantees as to goals you may make later in time. Third, now references any moment you read your fortune. Whenever you read the fortune, no matter how many times you read it, you are guaranteed that all goals you have at that moment will be successful.

A legal journal would be a strange place, indeed, for an article discussing the hermeneutics of fortune cookies. But this interpretive problem has reared its head in the context of statutory interpretation, most recently in Carcieri v. Salazar, decided by the Supreme Court in 2009. This Comment analyzes the interpretive problem now presents in statutory language and gauges methods to resolve the ambiguity. After beginning with the word’s ordinary meaning and finding it to offer no real guidance, this Comment concludes that, absent clear indication of the word’s meaning from legislative history, only a purposive or pragmatic determination can provide a solution. What is significant about now—and what forms the crux of this Comment—is that the resolution of the signification of now relies on what we think a statute really is.

NYTs Article on Ideological Polarization on the Supreme Court

September 7, 2010Matthew L.M. Fletcher

Here.

An excerpt:

Indeed, the polarization among law clerks has had consequences for the development of the law, a 2008 study published in the DePaul Law Review found. The presence of clerks who identified themselves as Democrats made liberal votes from the justices for whom they worked more likely, the study found. The opposite was true, too.

A handful of federal appeals court judges known as feeder judges are gatekeepers. J. Michael Luttig, for instance, produced more than 40 Supreme Court clerks in his 15 years on the federal bench, with 33 of them going to work for Justices Thomas or Scalia. Mr. Luttig, now general counsel of the Boeing Company, said the justices’ overall hiring practices reflected a fundamental shift.

“As law has moved closer to mere politics, political affiliations have naturally and predictably become proxies for the different political agendas that have been pressed in and through the courts,” Mr. Luttig said. “Given this politicization, it should come as no surprise to learn that the more liberal judges tend both to hire clerks who would self-describe themselves as Democrats and to hire clerks from other judges who would likewise self-describe themselves as Democrats, and vice versa for the more conservative judges.”

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Tohono O’odham Nation Merits Brief

September 3, 2010Matthew L.M. Fletcher

Here: TON Respondents Brief.

The government’s brief is here.

Early Preview of the Supreme Court’s 2010 Term

August 30, 2010August 30, 2010Matthew L.M. Fletcher3 Comments

Heading into the sixth year of the Roberts Court, we note first that the last Term (2009) was the second Roberts Court Term that did not feature a single Indian law case. In the first five years of the Court, there have been only 5 Indian law decisions — all losses for Indian Country.

However, the upcoming Term features one case already, and several others that are likely to be granted. Note the general trends in Indian law cases in the Supreme Court petition stage: (1) the United States’ petitions are granted about 2/3 of the time, or more; (2) petitions by states and their subdivisions are granted about 1/3 of the time; (3) petitions by tribes are almost never granted. And even the OSG’s influence wanes when supporting tribal interests.

1. United States v. Tohono O’odham Nation (09-846)

Question presented:

Under 28 U.S.C. 1500, the Court of Federal Claims (CFC) does not have jurisdiction over “any claim for or in respect to which the plaintiff * * * has * * * any suit or process against the United States” or its agents “pending in any other court.” The question presented is: Whether 28 U.S.C. 1500 deprives the CFC of jurisdiction over a claim seeking monetary relief for the government’s alleged violation of fiduciary obligations if the plaintiff has another suit pending in federal district court based on substantially the same operative facts, especially when the plaintiff seeks monetary relief or other overlapping relief in the two suits.

As we’ve noted before, this is a case in which Justice Kagan will have to sit out, due to her participation as Solicitor General. For the T.O.N., it might be a good thing, in that the respondents now only need four votes to prevail.

2. Hogan v. Kaltag Tribal Council (09-960)

Question presented:

Whether, for purposes of the Indian Child Welfare Act of 1978, 25 U.S.C. 1901 et seq., a tribal court has
concurrent jurisdiction with state courts to initiate and adjudicate a child-custody proceeding about an Indian child, when the child and her biological mother are tribal members and the nonmember biological father does not object to tribal-court jurisdiction, and when the child is not domiciled or residing within a reservation.

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OSG Brief in Hogan v. Kaltag Tribal Council — OSG Supports Tribe

August 28, 2010Matthew L.M. Fletcher5 Comments

Huge brief, here: Hogan 09-960 (SG Response).

Earlier materials here.

SCOTUSBlog: Madison County v. Oneida Nation a “Notable Petition”

August 26, 2010Matthew L.M. Fletcher3 Comments

No surprise here.

From SCOTUSblog:

Title: Madison County v. Oneida Indian Nation
Docket: 10-72
Issue: (1) Whether tribal sovereign immunity from suit bars taxing authorities from foreclosing to collect lawfully imposed property taxes; and (2) whether the ancient Oneida reservation in New York was disestablished or diminished.

Gould v. Cayuga Indian Nation Cert Petition

August 20, 2010Matthew L.M. Fletcher2 Comments

Here:

Gould v. Cayuga Cert Petition

Lower court materials here.

Questions presented:

I. Whether the New York State Court of Appeals in its 4-3 decision in Cayuga Indian Nation of New York v. Gould, 14 N.Y.3d 614 (2010), properly interpreted federal law on a matter it believed the United States Supreme Court had not yet addressed in holding that two parcels of land purchased by a successor to the historic Cayuga Indian Nation in 2003 and 2005 were exempt from New York’s cigarette sales and excise taxes after two hundred years of non-Indian ownership and governance.

II. Whether in that decision the New York Court of Appeals properly held both that (i) the Cayuga Indian Nation possessed a federal reservation pursuant to the 1794 Treaty of Canandaigua despite the fact that the Cayuga Indian Nation had ceded all of its land to New York State in 1789; and (ii) the United States did not subsequently disestablish any purported federal reservation.

When it rains, it pours, and it’s a veritable hurricane in New York right now.

Flurry of Amici Supporting Madison County’s Cert Petition against Oneida

August 19, 2010Matthew L.M. Fletcher

Here:

States Amicus in Support of Petition

Town of Lenox Amicus in Support of Petition

Town of Verona Amicus in Support of Petition

The petition in Madison County v. Oneida Indian Nation is here. Lower court materials here.

Analysis that now appears to be mere wishful thinking on whether the Court will grant review is here.

United States v. Jicarilla Apache Tribe — Time Sensitive — OSG to Decide Whether or Not to Seek Cert in Trust Case

August 17, 2010Matthew L.M. Fletcher2 Comments

Here are the materials so far in United States v. Jicarilla Apache Tribe (No. 10A20):

J-2010-08-10 In re US 2d application for cert. extension

This application was granted and the new deadline is Sept. 19 (docket entry).

It may be that right now the OSG is considering whether to petition for en banc review in the Oneida land claims case (for good reason, see here), but wondering whether that en banc petition will undermine a cert petition in the Jicarilla case (documents here).

Jicarilla is about whether the United States must turn over federal trust responsibility documents it claims are privileged (and documents that indicate the U.S. has a greater fiduciary duty to tribes than the DOJ is willing to accept in litigation with Jicarilla). Whether or not to file in Oneida goes to the heart of the trust responsibility.