Factbound and Splitless: The Certiorari Process as a Barrier to Justice for Indian Tribes

Matthew L.M. Fletcher, Michigan State University College of Law

Abstract

The Supreme Court’s certiorari process does more than help the Court parse through thousands of uncertworthy claims – the Court’s application of the process creates an affirmative barrier to justice for parties like Indian tribes and individual Indians. The negative impact of the certiorari process is all but invisible unless one studies a specific area of constitutional law. This study takes up that challenge. Statistically, there is a near zero chance the Supreme Court will grant a certiorari petition filed by tribal interests. At the same time, the Court grants certiorari in far more petitions filed by the opponents to tribal sovereignty.

The Supreme Court has long maintained that the certiorari process is a neutral and objective means of eliminating patently frivolous petitions from consideration. This empirical study of preliminary memoranda drafted by the Supreme Court law clerk pool demonstrates the likelihood that the Court’s certiorari process is neither objective nor neutral. The Court’s clerks overstate the relative merits and importance of petitions filed against tribal interests, while understating the merits and importance of tribal petitions. And the Court’s certiorari decisions are even more skewed against tribal interests than the clerks recommend.

I study 163 certiorari petitions filed during OT 1986 through 1994, and the accompanying “cert pool” memos that only recently became available through the opening of Justice Blackmun’s papers. The results show that a large percentage of petitions brought by tribal opponents received favorable treatment by Supreme Court clerks who simultaneously recommended denial in nearly all tribal petitions. The impact of this weighted review of cert petitions is that a disproportionate number of petitions filed by opponents to tribal interests are granted while very few tribal petitions are granted.

The research presented here suggests that the Court’s ostensibly neutral and objective measures are neither, and in the hands of the clerks – and the Justices who are their audience – measurably prejudice tribal interests before the Court.