The Tenth Justice Lost in Indian Country

Abstract

This short paper prepared for the 2009 Federal Bar Association’s Annual Meeting offers preliminary results of a study of the OSG in the Supreme Court from the 1998 through the 2008 Terms. I study the OSG’s success rates before the Court in every stage of litigation, from the certiorari process, the Court’s calls for the views of the Solicitor General, and on the merits of the cases that reach final decision after oral argument.

The paper begins with the preliminary data on the OSG’s success rate in Indian law cases. The data demonstrates that the OSG retains its success rate in both the certiorari process and on the merits when the United States is in opposition to tribal interests. But when the OSG sits as a party alongside tribal interests, and especially when the OSG acts as an amicus siding with tribal interests, the OSG’s success rate drops dramatically.

The purpose of this study is to help determine reasons for the very low success rate before the Supreme Court achieved by tribal interests in the past two or three decades. Taken in the greater context of other studies conducted on this phenomenon, the evidence that the Supreme Court has a significant and irrational animus against tribal interests is growing.

Keywords: Supreme Court, Solicitor General, certiorari, Indian tribes, Federal Indian Law, amicus brief, oral argument