Matthew L. M. Fletcher, "The Tenth Justice Lost in Indian Country"

Turtletalk's Matthew Fletcher has written a paper with a very smart insight.

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.

I've commented before on strong the OSG's brief was in Plains Commerce, and how surprising it is that the court ruled the other way without even seeming to take the OSG's office seriously. The finding here-- which amounts to the finding that "impairs tribal sovereignty" is a better predictor of which way the court rules than "outcome argued for by the Solicitor General," and that the SG office's general success record before the court doesn't carry over to the pro-tribal side of Indian law cases-- is the general form of that surprise. Recommended.