Bury My Chance At Supreme Court

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Attorney Andrew Cohen analyzes legal issues for CBS News and CBSNews.com.
This coming Monday, the United States Supreme Court will hear oral argument in a case involving the coal royalty rights of the Navajo Nation. It will be the second time the Justices have involved themselves in the dispute. The first time, in 2003, the Court sided with the government, that is to say the Interior Department, which at the request of an energy corporation had blocked a royalty increase to the Nation.

The case was then sent back down to the Federal Circuit Court for a new look. In 2007, that lower appeals court again sided with the Navajo people, ruling that the government had breached its fiduciary duty to the Nation. The Bush Administration again appealed, arguing that a ruling in favor of the tribe would "encourage the filing" of other claims against the Interior Department. And, last fall, the Supreme Court yet again expressed through its certiorari process (the means by which the Court typically agrees to accept certain cases and reject others) a willingness to step in and save the feds in their fight against the tribe.

While the merits of the case are complex, it is a virtual certainty that the Court's majority will once again reject the claims of the Navajos. That alone might be cause for some serious discussion about the relationship between the Court and American Indians. But thanks to an important study by Michigan State University Law Professor Matthew L.M. Fletcher we now know that there may be a problem that goes way beyond this single case.

Fletcher's trenchant study, entitled "Factbound and Splitless," concludes that the "Supreme Court's certiorari process is a barrier to justice for parties like Indian tribes and individual Indians. Statistically," he writes, "there is a zero chance the Supreme Court will grant a certiorari petition filed by tribal interests. At the same time, the Court grants certiorari in more than a quarter of petitions filed by the traditional opponents to tribal sovereignty." A 25 percent acceptance rate for any category of cert petitions is remarkably high in any circumstance-especially when compared with the number of, say, death penalty appeals that are accepted each term.

Fletcher determined through an "empirical study of preliminary memoranda drafted by the Supreme Court law clerk pool" that the Court's "certiorari process is neither objective nor neutral" when it comes to Indian cases. "Cert pool clerks overstate the relative merits and importance of petitions brought by states against tribal interests, while understating the merits and importance of tribal petitions." Fletcher studied 162 certiorari petitions filed between 1986 and 1994 and concluded that "a majority of petitions brought by state and local governments received favorable treatment from the cert pool while recommending denial in all but a single tribal petition."

There have been other questions raised recently about the "cert pool" process at the Court. The phrase means what it suggests. Seven of the nine Justices currently "pool" together their clerks to initially evaluate the 7,000 or so certiorari petitions that flood the Court each year. The analysis and recommendations that these clerks make thus take on a significance they would not normally have-one reason why Justices John Paul Stevens and Samuel A. Alito, Jr. do not allow their clerks to participate in the pool. Fletcher's powerful study-an examination of yet another way in which the powerless remain so under the rule of law-- makes the fairly esoteric debate over how the Supreme Court chooses its cases, and causes, more relevant and timely. Here's hoping someone on the Court notices.


  • Andrew Cohen

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