Supreme Court

New Yorker Article on Chief Justice Roberts

Matthew L.M. Fletcher

From the New Yorker (an excerpt):

Roberts’s hard-edged performance at oral argument offers more than just a rhetorical contrast to the rendering of himself that he presented at his confirmation hearing. “Judges are like umpires,” Roberts said at the time. “Umpires don’t make the rules. They apply them. The role of an umpire and a judge is critical. They make sure everybody plays by the rules. But it is a limited role. Nobody ever went to a ballgame to see the umpire.” His jurisprudence as Chief Justice, Roberts said, would be characterized by “modesty and humility.” After four years on the Court, however, Roberts’s record is not that of a humble moderate but, rather, that of a doctrinaire conservative. The kind of humility that Roberts favors reflects a view that the Court should almost always defer to the existing power relationships in society. In every major case since he became the nation’s seventeenth Chief Justice, Roberts has sided with the prosecution over the defendant, the state over the condemned, the executive branch over the legislative, and the corporate defendant over the individual plaintiff. Even more than Scalia, who has embodied judicial conservatism during a generation of service on the Supreme Court, Roberts has served the interests, and reflected the values, of the contemporary Republican Party.

Supreme Court Denies Cert in Two Indian Law Cases

Matthew L.M. Fletcher

The cases are Marceau v. Blackfeet Housing Authority (No. 08-881) and Seneca v. USET (No. 08-1127). The SCOTUS order list is here (see page 3 for these cases).

Our posts on Marceau are here and here and here and here. And our posts on the Seneca case are here and here.

Mich. Gov. Jennifer Granholm to be at White House on Tuesday

Matthew L.M. Fletcher

From AP:

WASHINGTON (AP) — Michigan Gov. Jennifer Granholm, one of President Barack Obama’s candidates for the Supreme Court, will be at the White House on Tuesday.

An administration official says the Democratic governor is coming to the White House for an event unrelated to the Supreme Court. It is not clear whether Granholm will be meeting with Obama about the upcoming vacancy on the court.

The official spoke on condition of anonymity because details of Tuesday’s event have not been announced.

Granholm is among more than six people Obama is considering for the seat on the court now held by Justice David Souter, who is retiring this summer.

The 50-year-old Granholm is a former federal prosecutor and Michigan attorney general.

NYTs Op-Ed on Supreme Court Nominations

Matthew L.M. Fletcher

From the NYTs:

Obama’s Choice

By H.D.S. GREENWAY

With the resignation of U.S. Supreme Court Justice David Souter, Barack Obama is about to make one of the most import appointments any president can make. For picking a justice for the Supreme Court will have more ramifications for the republic than any cabinet secretary or ambassador.

The United States may be a comparatively young country, but its institutions have influenced the world profoundly. The constitutional ideals put forth upon its shores in the late 18th century guided the way other societies organized themselves, from the Déclaration des Droits de l’Homme et du Citoyen in France in 1789, to the Universal Declaration of Human Rights adopted by the United Nations in 1948, to the constitutions of dozens of other countries emerging from colonialism and Communism. From the earliest times, as the historian Samuel Eliot Morison wrote: Liberty to Americans meant, “first freedom under laws of their own making, and, second, the right to do anything that did not harm others.”

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Commentary on the Status of the Arizona Snowbowl Cert Petition

Matthew L.M. Fletcher1 Comment

OK, so now the United States has come out in opposition to the Navajo Nation’s cert petition in the Snowbowl case. A few comments:

1. Too bad any effort to persuade the Obama Administration to change course in this case failed. We understand that with very, very new SG Kagan on board there was likely little chance to make that happen, but it’s still disappointing. What would be really disappointing is if the government is unwilling to consider settlement and dismissal under Rule 56 if the Court does grant cert, where the government has time to consider its position.

2. We think it’s fairly well established that the government was more likely wrong than not that there is no split in authority under the “substantial burden” test. The en banc opinion in the Ninth Circuit was a big stretch, and went way beyond the other circuits that have confronted the question. The question now is whether the Supreme Court thinks this is the right vehicle to decide the question. There may be one decent reason to think it is not — these tribes have already litigated the Snowbowl to the Supreme Court once before in Wilson v. Block, 708 F.2d 735, and the Court denied cert back then.

But of course, that doesn’t really matter if the Court wants this one. And there’s no reason to think it doesn’t. How many times has the Court used Indian law and Indian religions as a battleground for its religious freedom doctrines? Bowen, Lyng, Smith I, Smith II….

Obama Administration Sides with Arizona Snowbowl

Matthew L.M. Fletcher1 Comment

Here are the two cert opposition briefs filed in Navajo Nation v. USFS:

Federal Cert Opposition

Arizona Snowbowl Cert Opposition

Navajo Nation’s Amicus Brief in Voting Rights Act Case

Matthew L.M. Fletcher1 Comment

From the ASU Indian Law blog:

The Indian Legal Clinic and Sacks Tierney filed an amici brief in the above-reference case regarding the constitutionality of the Section 5 preclearance requirements. Indian Legal Clinic Student Attorney Nikki Borchardt (3L), Adjunct Professor and ASU Alum Judy Dworkin and Professor Patty Ferguson Bohnee prepared the brief.

Brief of the Navajo Nation, Anthony Wounded Head, et al. Amici are concerned that if the Court declares that the reauthorization of Section 5 is unconstitutional, American Indian voting rights will be significantly impacted and result in a reversal of the strides made in recent years to ensure greater Indian voter participation. This would negatively impact many American Indian voters who only recently secured the right to vote, continue to face discrimination in voting, and who cannot shoulder the financial burden to bring lawsuits under Section 2 of the VRA.

Possible Supreme Court Nominees and Their Federal Indian Law Record

Matthew L.M. Fletcher2 Comments

We previously posted on four possible Supreme Court nominess after President Obama’s election — Judges Wood and Sotomayor, Dean Kagan, and former SG Waxman. We update those materials, and add a few more possibilities (Judges McKeown and Wardlaw, and Professors Karlan and Sullivan). In no particular order….

1. CA2 Judge Sonia Sotomayor

Judge Sotomayor has written the majority opinions in two unexceptional Indian law cases, Catskill Development v. Park Place Entertainment (2008 ) and United States v. White (2001). Catskill Development involved the authority of the National Indian Gaming Commission to review and opine on gaming management contracts, and White involved the federal prosecution of Mohawk Indians for failure to report income to the IRS. Judge Sotomayor has some Indian law exposure, but not on anything controversial.

Judge Sotomayor also voted with the majority in Bassett v. Mashantucket Pequot (2000), a case affirming the sovereign immunity of the tribe.

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Supreme Court Denies Cert in Indian Law Cases Today

Matthew L.M. Fletcher2 Comments

The Supreme Court denied cert in two petitions captioned Cook v. Avi Casino Enterprises (Nos. 08-929, 08-930). It’s on page 4 of this order list.

This is good news for Indian Country (and for my student writing a paper on this subject — you reading this, J.?). There is a split of authority on the question of whether tribal business enterprises are immune from suit in a state law dram shop action, as we have discussed before. But I’m guessing the Court thinks it’s either unimportant or too much a state law question, since each state has its own version of dram shop laws and applies its own understanding of tribal sovereign immunity. But who knows….

Justice Souter’s Federal Indian Law Legacy

Matthew L.M. Fletcher1 Comment

Justice Souter’s retirement at the end of this Term all but demands a recount of his voting record in Supreme Court cases involving federal Indian Law. He was part of the Court for nearly 20 Terms, and voted in 41 Indian law cases (for a list of Indian law cases, see our Supreme Court page). Excluding two votes in cases that are difficult to characterize (Negonsott and Youpee), Justice Souter voted for tribal interests 16 times and against them 23 times.

Several themes run through Justice Souter’s Indian law votes. He usually sided with tribal interests in the areas of treaty rights and treaty interpretation, as well as in trust cases involving the United States as a defendant. He also sided with tribal interests in federalism cases involving the 11th Amendment. But he typically ruled in favor of states and against tribal interests in tax cases, especially after the mid-90s, and in cases involving tribal jurisdiction over nonmembers.

Overall, he left an indelible footprint on federal Indian law. His legacy likely is not yet determinable. He only wrote four opinions for the Court, and six other opinions concurring or dissenting. Justice Souter will probably be best known in Indian law circles for his devastating concurring opinion in Nevada v. Hicks, but his overall record is relatively favorable to tribal interests. And, in our opinion, the Hicks concurrence served as a powerful wake-up call to tribal advocates who hadn’t noticed how far the Court had drifted away from tribal positions.

Justice Souter’s Indian law record can be divided into three loose phases. In the first phase, dating loosely from his first vote in Oklahoma Tax Commission v. Citizen Potawatomi to his powerful dissent in Seminole Tribe (see the Boston Globe article on this case), Justice Souter’s voting record was pretty good — 6 votes in favor of tribal interests and 4 against (excluding a couple cases that could be construed as ties). New-Justice Souter became close to Justice Blackmun in their few years together on the Court, and Justice Souter joined Justice Blackmun’s otherwise-solitary dissents in South Dakota v. Bourland and Hagen v. Utah. He voted three times against the Oklahoma Tax Commission (Citizen Potawatomi, Sac and Fox, and Chickasaw Nation). However, he wrote the majority opinion favoring the Indian Health Service in Lincoln v. Vigil, an administrative law case.

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