Briefs here (still waiting on OSG brief and reply briefs):
Amicus Brief Supporting Cert Petition
Second Amicus Brief Supporting Petitioner
Lower court materials are here.
Questions Presented:
Supreme Court
Rosen: Is Chief Justice Roberts a Radical?
From the New Republic:
Last month, the Supreme Court handed down its most polarizing decision since Bush v. Gore. The 5-4 ruling in Citizens United v.Federal Election Commission called into question decades of federal campaign finance law and Supreme Court precedents by finding that corporations have a First Amendment right to spend as much money as they want on election campaigns, as long as they don’t consult the candidates. It was precisely the kind of divisive and unnecessarily sweeping opinion that Chief Justice John Roberts had once pledged to avoid.
In 2006, at the end of his first term on the Court, Roberts told me and others that he was concerned that his colleagues, in issuing 5-4 opinions divided along predictable lines, were acting more like law professors than members of a collegial court. His goal, he said, was to persuade his fellow justices to converge around narrow, unanimous opinions, as his greatest predecessor, John Marshall, had done. Roberts spoke about the need for justices to show humility when dealing with the First Amendment, adding that, unlike professors writing law review articles, judges should think more about their institutional role. “Yes, you may have another great idea about how to look at the First Amendment,” he said, “but, if you don’t need to share it to decide this case, then why are you doing it? And what are the consequences of that going to be?”
Since then, Roberts has presided over some narrow, unanimous (or nearly unanimous) rulings and some bitterly divisive ones. And so, it’s been hard to tell how seriously he is taking his pledge to lead the Court toward less polarizing decisions. Then came Citizens United, by far the clearest test of Roberts’s vision. There were any number of ways he could have persuaded his colleagues to rule narrowly; but Roberts rejected these options. He deputized Anthony Kennedy to write one of his characteristically grandiose decisions, challenging the president and Congress at a moment of financial crisis when the influence of money in politics–Louis Brandeis called it “our financial oligarchy”–is the most pressing question of the day. The result was a ruling so inflammatory that the president (appropriately) criticized it during his State of the Union address. Continue reading
Justice Breyer on Cherokee Cases and the Supreme Court’s History
From the Yale Daily News via How Appealing:
Even as a teenager, Supreme Court Justice Stephen Breyer cast a long shadow, University President Richard Levin said Monday.
Breyer and his younger brother, Charles, attended Lowell High School in San Francisco — followed less than a decade later by Levin, who said the highest praise he received as a student was that his school work was the “best since the Breyer brothers.”
Levin then followed Breyer at Stanford and Oxford, but their paths diverged when Levin chose to attend Yale to get his doctorate in economics, and Breyer chose to attend Harvard Law School.
Thirty-five years later, Levin said he could sum up Breyer in a single word.
“He’s awesome,” Levin said, introducing the Justice to a packed Law School Auditorium crowd Monday afternoon for a lecture titled “History: Challenges the Court Has Faced.” In the lecture, Breyer highlighted several key cases in the Supreme Court’s history in an attempt to answer one question that he said foreign judges often ask him about the Court: “Why does it work?”
The answer, Breyer said, is complicated. Over the course of United States history, Americans have come to accept the Court’s decisions as binding — though this was not always true. To demonstrate this, Breyer highlighted prominent cases that illustrate the establishment of the Court’s authority, including Marbury v. Madison in 1803, Worcester v. Georgia in 1832, Cooper v. Aaron in 1958 and Bush v. Gore in 2000.
Breyer began the lecture by praising Chief Justice John Marshall’s wisdom in Marbury v. Madison — which established the Court’s right to review the actions of the executive and legislative branches — without raising the ire of then-President Thomas Jefferson.
“Chief Justice Marshall called upon Houdini Marshall to get out of a jam,” Breyer joked, explaining that Marshall managed to make Jefferson think he had won while actually expanding the Court’s authority.
Breyer then referred to the conflict that arose between Marshall and President Andrew Jackson in 1832, when the Court ruled that the state did not have jurisdiction over Cherokee lands, quoting a famous — though possibly falsely attributed — line from Jackson: “John Marshall has made his decision — now let him enforce it.” Eventually, Breyer said, Jackson came to regret this decision when South Carolina claimed that if Jackson and the state of Georgia did not have to submit to the Court’s decision, South Carolina did not have to pay federal tariffs. This disagreement is widely cited as influential in the start of the Civil War.
“Even Jackson figured out that was not such a good idea,” Breyer said. Continue reading
Attea v. N.Y. Dept. of Taxation Cert Petition
Here: Attea v. Dept. of Taxation Cert Petition.
Questions presented:
1. Whether New York State usurps the United States Congress’ plenary power to regulate commerce with the Indian Tribes under Article 1, Section 8, Clause 3 of the US Constitution by imposing a direct tax and onerous record keeping burdens directly on a Federally Licensed Indian Trader.
2. Whether, if Indian Trader income is state taxable, New York State violates a nonresident’s Due Process rights and the Commerce Clause by taxing an indiscriminate amount of a nonresident’s income solely because there is insufficient proof to show the amount of income allocable to out of State sources.
Lower court opinion here.
Will Justice Stevens Soon Retire?
Adam Liptak at the New York Times thinks so (here).
New Scholarship on Williams v. Lee
Dewi I. Ball has posted “Williams v. Lee (1959) – 50 years later: A Re-assessment of One of the Most Important cases in the Modern-era of Federal Indian Law” on BEPress (download here). Here is the abstract:
It is 50 years since the landmark decision of Williams v. Lee was handed down by Justice Hugo Lafayette Black and the United States Supreme Court. At the time, the case was a watershed event that signified the legal resurgence of Native America in Federal Indian law and in particular, the renaissance of the Indian sovereignty doctrine, inherent tribal sovereignty and the principles of Worcester v. Georgia. There can be no doubt that the eloquently constructed opinion by Hugo Black brought positive news for all Native Americans, especially in light of the process of Termination that was being pursued by Congress and the United States President. However, against this nascent sense of renewal and hope, the Williams case also began what became an insidious trend in the decision-making process of the U.S. Supreme Court; the weakening of the Indian sovereignty doctrine and some of the key attributes of tribal power; namely civil, criminal and taxation authority. Much of the academic literature in the field of Federal Indian law and Native American studies points to the importance of the Williams case as one which strengthened Native American sovereignty but other academics, from the 1990s, have questioned whether the case was an overall success for the authority of Native Americans on their reservations in the complexity of what is Federal Indian law. Although this article will analyze the re-affirmation of the Indian sovereignty doctrine and inherent tribal sovereignty in the Williams opinion, through the use of archival materials from the private papers of U.S. Supreme Court Justices, it will also be the first article in Native American studies to examine behind the scenes discussions and processes used in the Williams case and argue that the weakening of the Indian sovereignty doctrine began in 1959.
Scholarship on this case is burgeoning. Hon. Raymond Austin’s book “Navajo Courts and Navajo Common Law” touches upon the case from the point of view of the Navajo Nation government, which treated it as a kind of test case.
This work parses through the papers of Justice Brennan for an inside look at how the Court decided the case. A sobering work well worth reading.
Salon’s “This Week in Crazy: Clarence Thomas”
Here.
Supreme Court Colloquy on Indian Tribes as Intervenors in Original Jurisdiction Cases
Today, the Supreme Court held that two non-sovereign entities may intervene in an original jurisdiction case (South Carolina v. North Carolina). Of note, it appears that for the first time, the Court allowed a non-sovereign entity to intervene in an original jurisdiction case. The majority’s reference to Indian tribes is trouble, especially in light of the dissent’s response.
Here is the majority:
Over the “strong objections” of three States, for example, the Court allowed Indian tribes to intervene in a sovereign dispute concerning the equitable apportionment of the Colorado River. Arizona v. Cali-fornia, 460 U. S., at 613. The Court did so notwithstanding the Tribes’ simultaneous representation by the United States. Id., at 608–609, 612.
Seems relatively innocuous, until one reads the dissent:
The result is literally unprecedented: Even thoughequitable apportionment actions are a significant part of our original docket, this Court has never before granted intervention in such a case to an entity other than a State, the United States, or an Indian tribe. Never. That is because the apportionment of an interstate waterway is a sovereign dispute, and the key to intervention in such an action is just that—sovereignty. The Court’s decision to permit nonsovereigns to intervene in this case has the potential to alter in a fundamental way the nature of our original jurisdiction, transforming it from a means of resolving high disputes between sovereigns into a forum for airing private interests.
And later:
Take Arizona v. California, 460 U. S. 605 (1983). There we allowed several Indian Tribes to intervene in a water dispute. Id., at 615. As the Court in that case made clear, however, the Indian Tribes were allowed to intervene because they were sovereign entities. Ibid. The Court distinguished New Jersey v. New York on that veryground. See 460 U. S., at 615, n. 5.
It seems the majority implicitly characterized Indian tribes (and the City of Port Arthur, Texas) as a non-sovereign in order to stress the non-importance of today’s decision. One shouldn’t read too much into this, of course. But still…. Uggh.
United States Files Cert Petition in Supreme Court re: Procedure in Indian Trust Cases
Here is the petition: United States v Tohono O’odham Nation Cert Petition.
Suffice it to say that the chances of this petition being granted are pretty good — about two-thirds (or more) of all of the United States’ cert petitions are granted.
Here are the questions 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.
Here are the lower court materials. And a decision in a similar case.
Additional News Coverage of Asian Carp Debacle
From How Appealing:
“Asian carp DNA found in Lake Michigan; High Court inaction angers Mich. leaders”:The Detroit News has an update that begins, “On the same day the U.S. Supreme Court announced it would not take immediate action to prevent Asian carp from reaching Lake Michigan, DNA samples indicate the fish may already be there.”
The Detroit Free Press has a news update headlined “Granholm: White House summit about carp needed.”
The Chicago Tribune has a news update headlined “Army Corps: Asian carp DNA found in Lake Michigan.”
And James Vicini of Reuters reports that “Michigan request denied in Great Lakes carp case; High court won’t order closing of two Chicago-area locks; Federal government said Michigan was unlikely to prevail; Closing locks would hurt shippers.”
Turtle Talk 
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