Thunderhorse v. Pierce

Commentary on Cert Denial in Thunderhorse

January 10, 2011Matthew L.M. Fletcher3 Comments

With no fanfare, the Supreme Court denied cert in Thunderhorse v. Pierce (order list here). Given that it was an unpublished per curiam opinion, we never even knew about it until SCOTUSblog listed it as a petition to watch, and then the Court asked for the views of the Solicitor General on the petition.

In relatively rare circumstances, the Supreme Court will grant certiorari in a case where the lower court has committed what the Court sometimes calls a “gross error.” The classic case is the application of the wrong standard or legal rule in deciding the case. This case is noteworthy because the SG argued (the invitation brief is here) that the Fifth Circuit applied the wrong law, and suggested that the Court could summarily reverse the lower court and remand for application of the correct standard.

Here is the key portion of the Solicitor General’s invitation brief:

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Today’s Supreme Court Conference: Indian Law Petitions Up for Discussion

January 7, 2011Matthew L.M. Fletcher2 Comments

There are two (actually three) petitions that will be discussed at least indirectly at today’s Conference (SCOTUSblog link here). We will know Monday if any of these petitions are granted, and later in the week if any are denied. In order of our estimates of the chance of a grant, here they are:

Significant likelihood (perhaps over 50 percent), based entirely on the fact that the Court typically grants far more than half of the federal government’s cert petitions:

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:

Likely being held for discussion depending on the determination in Jicarilla is the U.S. v. Eastern Shawnee petition (here).

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OSG Invitation Brief in Thunderhorse v. Pierce

December 3, 2010December 3, 2010Matthew L.M. Fletcher4 Comments

From SCOTUS blog:

Yesterday the Acting Solicitor General filed an invitation brief in Iron Thunderhorse v. Pierce (09-1353), recommending that the Court deny certiorari or, in the alternative, grant certiorari and summarily reverse and remand the Fifth Circuit’s ruling for application of the correct legal standard. At issue in the case is whether the court of appeals misinterpreted the Religious Land Use and Institutionalized Persons Act to require only a minimal showing that a prison grooming rule which concededly imposes a substantial burden on religious exercise is the “least restrictive means of furthering [a] compelling governmental interest.” The Acting Solicitor General’s brief is available here.

An excerpt, where the OSG argues that the Fifth Circuit made a gross error:

But petitioner in this case raised arguments and evidence not addressed in Diaz or Longoria: that other prison systems (including the federal Bureau of Prisons)permit long hair, and that TDCJ enforces its grooming policy in an inconsistent manner. Id. at 10a n.3. Thecourts below, however, never required respondents to explain why the alternative, less restrictive practices utilized in other prison systems would not work in the Polunsky unit. Nor did they require prison administrators to explain why the previous inconsistent application of the grooming policy to petitioner and to others (including Texas’s female inmate population) did not indicatethat a less restrictive alternative was appropriate. See ibid. Although respondent acknowledges (Br. in Opp. 14-15 (citing Odneal, supra)) that the Fifth Circuit requires prison officials to justify application of a challenged policy under the facts of a particular case, respondent notably does not even attempt to justify the court of appeals’ refusal to hold officials to that standard in this case.

The petition stage materials are here.

Supreme Court Update: Iron Thunderhorse v. Pierce CVSG

October 4, 2010October 18, 2010Matthew 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.