Supreme Court

Slate: A New Way of Judging the Ideology of Supreme Court Justices

Matthew L.M. Fletcher

From Slate:

I was struck by a news photo, back when John Roberts was being vetted for the Supreme Court, of our future chief justice walking to the street through the front yard of his Bethesda, Md., home. It was a very bare yard, painfully tidy; you could call it socially conservative. From the looks of things, many homeowners from Bangor, Maine, to San Diego, Calif., have a similar fear of looking different from their neighbors or being a little freed-up, generous, or, dare I say, liberal in their planting. (At one point, I considered photographing the front yards of each of our Supreme Court justices to see if the garden plots reflected their different temperaments and likely decisions. I’ve been holding off on this for fear of being apprehended as a security risk.)

US Amicus Brief in Plains Commerce Bank

Matthew L.M. Fletcher

It’s a good one!

Brief of United States as Amicus Curiae Supporting Respondent

Merits Brief for Long Family in Plains Commerce Bank Case

Matthew L.M. Fletcher

It’s here.

Newcombe: “Examing the Oral Arguments in Dann”

Matthew L.M. Fletcher

From Indian Country Today:

The Internet is amazing. I came across the audio (along with a written transcript) of the 1984 oral arguments in the case U.S. v. Dann. By listening to the audio recording, we are able to experience the arguments made 24 years ago before the Rehnquist Supreme Court regarding the issue of Western Shoshone land rights.

Robert McConnell, Assistant U.S. Attorney General, argued on behalf of the United States, which was suing Mary and Carrie Dann for allegedly trespassing on ”public lands” (Western Shoshone lands) by grazing their livestock without a permit from the Bureau of Land Management. McConnell opened by saying: ”Mr. Chief Justice, and may it please the Court, this case comes before this Court on writ of certiorari to the Ninth Circuit Court of Appeals. It concerns the finality effect of Section 22(a) of the Indian Claims Commission Act.”

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The Issues in Carcieri v. Kempthorne

Matthew L.M. Fletcher

The two questions presented in Carcieri v. Kempthorne have significant import for much of Indian Country. But it might be a mistake to conclude the first question (whether the Secretary can take land into trust for tribes that were not federally recognized in 1934, when the Indian Reorganization Act was passed) is an Indian law question. The outcome of that question may turn on the Supreme Court’s decision in National Cable & Communications Assn v. Brand X Internet Services, 545 U.S. 967 (2005). Huh?!?!?

Consider the United States’ brief in opposition to the petition for cert:

    As this Court held in [Brand X], a “judicial precedent” does not “foreclose an agency from interpreting an ambiguous statute” in a reasonable way that differs from the “court’s opinion as to the best reading” of the statute, unless “the prior court decision holds that its construction follows from the unambiguous terms of the statute and thus leaves no room for agency discretion.” [Brand X, at 982-83.]

Cert Opp at 9.

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Certiorari Granted in Carcieri v. Kempthorne

Matthew L.M. Fletcher1 Comment

Here’s the order. The Court will address two questions:

1. Whether the 1934 Act empowers the Secretary to take land into trust for Indian tribes that were not recognized and under federal jurisdiction in 1934.

2. Whether an act of Congress that extinguishes aboriginal title and all claims based on Indian rights and interests in land precludes the Secretary from creating Indian country there.

The Court declined to hear the third proposed question presented:

3. Whether providing land “for Indians” in the 1934 Act establishes a sufficiently intelligible principle upon which to delegate the power to take land into trust.

WaPo Coverage of Exxon Valdez Oil Spill S.Ct. Case

Matthew L.M. Fletcher

From WaPo:

When a federal jury in Alaska in 1994 ordered Exxon to pay $5 billion to thousands of people who had their lives disrupted by the massive Exxon Valdez oil spill, an appeal of the nation’s largest punitive damages award was inevitable.

But almost no one could have predicted the incredible round of legal ping-pong that only this month lands at the Supreme Court.

In the time span of the battle — 14 years after the verdict, nearly two decades since the spill itself — claimants’ lawyers say there is a new statistic to add to the grim legacy of the disaster in Prince William Sound: Nearly 20 percent of the 33,000 fishermen, Native Alaskans, cannery workers and others who triumphed in court that day are dead.

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New Cert Petition — Carls v. Blue Lake Housing Authority

Matthew L.M. Fletcher1 Comment

This case involves the tribal sovereign immunity of the Blue Lake Housing Authority. It is being appealed out of the California state court system. Here are the materials so far:

Cert Petition in Carls v. Blue Lake Housing Authority

Unpublished Cal COA (3rd) Opinion

Carls Appellant Brief (Cal COA)

Blue Lake Appellee Brief (Cal COA)

Plains Commerce Bank — Petitioner Brief and Joint Appendix

Matthew L.M. Fletcher

They are available at the Supreme Court Project website.

Carcieri v. Kempthorne a “Petition to Watch”

Matthew L.M. Fletcher

SCOTUSBlog lists Carcieri v. Kempthorne as a petition to watch for the Feb. 22 conference.

There are some warning signs, notably the amicus brief filed by numerous states in support of Rhode Island’s petition. See Gregory A. Caldiera & John R. Wright, Organized Interests and Agenda Setting in the U.S. Supreme Court, 82 American Political Science Review 1109, 1122 (1988 ) (“[A]micus curiae briefs filed in support of the petition for certiorari increase the estimated probability that the Supreme Court will grant by a magnitude of .5 or .6, depending upon the characteristics of a particular case.”).

As I argued earlier, however, (1) there is no circuit split; and (2) the issue may turn on the particular import of the Rhode Island Indian Claims Settlement Act, meaning that the outcome could have little or no import nationally. Moreover, the United States is in opposition, so these factors may be sufficient to persuade the Court to let this one percolate.

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