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Georgetown Supreme Court Institute seeking new director

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Georgetown Supreme Court Institute seeking new director

The Georgetown University Supreme Court Institute (SCI) is seeking applicants for the position of director. SCI’s principal function is to provide moot courts to attorneys who will argue in the Supreme Court. The director’s principal role is to organize, participate in and monitor those moots courts. Substantial experience as an appellate advocate is required. The job posting, with directions on how to apply and a link to submit a cover letter and resume, is available at this link.

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Tom Goldstein and David Savage talk through abortion, precedent and the Supreme Court

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Tom Goldstein and David Savage talk through abortion, precedent and the Supreme Court

In this week’s episode of SCOTUStalk, Amy Howe of Howe on the Court briefly covers the latest Supreme Court news before speaking with Tom Goldstein of SCOTUSblog and David Savage of the Los Angeles Times about abortion and recent legislation aimed at overturning Roe v. Wade.

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Opinion analysis: Court rejects issue preclusion in affirming Crow Tribe’s treaty hunting right

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Opinion analysis: Court rejects issue preclusion in affirming Crow Tribe’s treaty hunting right

In Herrera v. Wyoming, the Supreme Court today overruled the Wyoming courts and held that the Apsáalooke Nation, also known as the Crow Tribe, retains its treaty-guaranteed right to hunt on unoccupied lands outside its reservation. Although the case turned on complicated questions of precedent and preclusion, the decision is perhaps most significant for what it augurs for future struggles for tribal rights before this court.

Wyoming convicted Clayvin Herrera, a Crow tribal member, for violating state hunting laws, notwithstanding the promise in an 1868 federal treaty that the tribe and its members preserved the right to hunt on “unoccupied” lands. The lower courts had reasoned that an earlier decision of the U.S. Court of Appeals for the 10th Circuit, Crow Tribe of Indians v. Repsis, which held that the tribe’s treaty right was abrogated when Wyoming became a state, precluded Herrera from arguing that the treaty right was still valid. In an opinion by Justice Sonia Sotomayor, the Supreme Court disagreed.

Justice Sotomayor with opinion in Herrera v. Wyoming (Art Lien)

Repsis did not bind Herrera, the court reasoned, because there had been a significant intervening change in the law that barred issue preclusion. Repsis had relied on an 1896 Supreme Court decision, Ward v. Race Horse, which had held an identical treaty hunting provision incompatible with statehood. But after Repsis, the Supreme Court in its 1999 decision Minnesota v. Mille Lacs Band of Chippewa Indians firmly rejected the application of Race Horse in a similar dispute. The court observed today that Mille Lacs had “methodically repudiated” the “logic” of Race Horse. Although Mille Lacs had declined to explicitly overrule Race Horse, today’s decision took that next step: “[W]e make clear today that Race Horse is repudiated to the extent it held that treaty rights can be impliedly extinguished at statehood.”

Without Race Horse or Repsis, the state could not successfully argue that statehood had ended the tribe’s treaty right. The court dismissed the state’s historical argument to the contrary, based on a “potpourri of evidence,” as “severely flawed.”

The court further held that Bighorn National Forest did not become categorically “occupied” when the forest was created, which would have voided the treaty right. The treaty term “unoccupied,” the court stressed, must be interpreted as the Crows understood it, and the court cited historical evidence that, to the Crows, “unoccupied” would have meant “free of residence or settlement by non-Indians.” The court rejected an argument that this issue, too, had been settled in Repsis, noting in a lengthy footnote that the Wyoming courts had not addressed the case’s preclusive effect on the issue and declining to decide it in the “first instance.”

In affirming the tribe’s treaty hunting right, the court stressed that this right is not unlimited. Portions of the national forest may be legally “occupied” under the treaty language, it noted, and Wyoming retains the power to impose nondiscriminatory conservation regulations on tribal treaty rights under well-established precedent.

Four justices dissented. Writing for the minority, Justice Samuel Alito argued that issue preclusion should have prevented the court from interpreting the treaty. After suggesting at length that the relationship between Mille Lacs and Race Horse was “by no means clear,” Alito noted that he “would not decide that question” at all. Rather, accusing the majority of “hairsplitting,” he would have held that Repsis had concluded that the national forest was “occupied,” which would have precluded Herrera from relitigating the validity of the treaty hunting right.

For Clayvin Herrera and other members of the Apsáalooke Nation, whose briefs stressed their reliance on subsistence hunting, the Supreme Court’s decision vindicates a right they believe essential. For Indian country more broadly, the court’s specific reasoning is less significant than its tone. The court’s repeated emphasis that treaty terms must be interpreted “in the sense in which they would naturally be understood by the Indians” reiterates a long-standing Indian law principle that recent Supreme Court decisions have sometimes honored in the breach. Perhaps most notably, Justice Neil Gorsuch’s willingness to break with the other conservative justices and join the court’s more liberal wing — hinted at in earlier Indian law decisions — may signal an emerging coalition in favor of the rights of Native nations.

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Academic highlight: The states arguing as amici curiae in the Supreme Court

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Academic highlight: The states arguing as amici curiae in the Supreme Court

Those of you paying close attention to oral argument in the Supreme Court this term may have noticed something unusual. In three cases (Sturgeon v. Frost, Gamble v. United States and Tennessee Wine & Spirits Retailers Association v. Blair), one of the advocates was a state government attorney arguing on behalf of a state or group of states as amicus curiae. As discussed in my recent article for Green Bag 2D, “The Modern History of State Attorneys Arguing as Amici Curiae in the U.S. Supreme Court,” the court appears once again willing to hear from the states even when no state is a party.

Alaska Assistant Attorney General Ruth Botstein arguing in Sturegon v. Frost (Art Lien)

The modern history of state attorneys arguing as amicus curiae in the Supreme Court began with then-Ohio State Solicitor Jeffrey Sutton’s 1997 argument in City of Boerne v. Flores. For a decade following that argument, stretching from the 1996 to the 2006 terms, the court routinely granted state motions for argument time as amicus. As my article details, based on my review of all the state motions during that time period, “the following ‘rule’ appeared to exist: The Court would grant a state attorney’s motion for argument time as amicus if (1) the state had the consent of the party it was supporting and (2) the United States was not arguing (as amicus or a party) on the side the state supported. That rule placed the states above all litigants in the Court other than the U.S. Solicitor General.”

Starting in the 2007 term, however, the Supreme Court changed course. In that term, the court denied seven of the state attorneys’ eight argument motions, including four that satisfied the “rule.” For the next six terms, the states rarely sought amicus argument time and when they did, they were rebuffed by the court.

The tide started to turn back in 2014, when the Supreme Court granted then-Kansas Solicitor General Stephen McAllister’s motion for amicus argument time in Oneok Inc. v. Learjet Inc. Since then, the court has granted four more state amicus argument motions (including the three this term). A look at the cases in which the court has granted and denied states’ motions suggests that the court will grant state amicus motions when the states — as sovereigns — have a distinct perspective from the party they are supporting. For example, Sturgeon v. Frost concerned Alaska’s and the National Park Service’s competing claims to power over navigable waters within Alaska’s boundaries. Alaska had a compelling sovereign interest in the controversy that was distinct from the interest of John Sturgeon, the moose hunter who brought the case.

By contrast, the Supreme Court has denied recent state motions when the state amici supported state parties. Presumably, the court believes the state perspective is already before it and doesn’t need to be seconded by a state amicus. (By contrast, between the 1996 and 2006 terms, the court often allowed state amici to argue in support of state parties.)

It remains to be seen whether the Supreme Court will wish to hear from state amici in another category of cases: “where both the federal government and the states regularly enforce a federal law but have differing views about how it should be interpreted.” The court allowed state amicus arguments in cases of that sort — such as Leegin Creative Leather Products Inc. v. PSKS Inc. (antitrust) and United States v. Atlantic Research Corp. (environmental law) — between the 1996 to 2006 terms. No recent state amicus motions have involved this situation, so we don’t yet know the court’s attitude toward it.

All told, the Supreme Court’s recent willingness to hear from state attorneys as amicus curiae is a positive development. As my article concludes, “Given the states’ central role in federalism disputes and federal law-enforcement cases before the Court, and given the high quality of state advocates, they deserve a regular place at the argument table.”

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Opinion analysis: Divided court allows antitrust lawsuit against Apple to continue

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Opinion analysis: Divided court allows antitrust lawsuit against Apple to continue

This morning a divided Supreme Court handed a major victory to the plaintiffs in a massive antitrust lawsuit against technology giant Apple. By a vote of 5-4, the justices allowed the lawsuit, brought by a group of iPhone users who allege that Apple is violating federal laws by requiring them to buy apps exclusively from Apple’s App Store, to go forward. In an opinion by its newest justice, Brett Kavanaugh, the court rejected Apple’s argument that the lawsuit should be shut down because the company was selling the apps at prices set by the app developers, so that the iPhone users’ claims were prohibited under the Supreme Court’s antitrust cases.

Justice Kavanaugh with opinion in Apple Inc. v. Pepper (Art Lien)

Today’s decision was the latest chapter in a dispute that dates back several years. It began when the iPhone users filed their lawsuit in a federal trial court in California, which threw the case out. The lower court relied on a 1977 case called Illinois Brick Co. v. Illinois, in which the Supreme Court ruled that triple damages for violations of federal antitrust laws are not available to an “indirect purchaser” — a plaintiff whose claim isn’t that he was personally overcharged, but instead that the defendant overcharged someone else, who passed the extra charge on to the plaintiff. In the trial court’s view, that’s exactly what happened here: App developers paid Apple a 30 percent commission and then passed that 30 percent mark-up on to the iPhone users, which meant that the iPhone users were not direct purchasers from Apple.

On appeal, the U.S. Court of Appeals for the 9th Circuit reversed and reinstated the iPhone users’ lawsuit. The court of appeals regarded the case as much simpler: In its view, Apple is a distributor which sells the apps to iPhone users directly through its App Store. Today a majority of the justices agreed.

The Supreme Court’s decision in Illinois Brick, Kavanaugh explained, “established a bright-line rule that authorizes suits by direct purchasers but bars suits by indirect purchasers.” Here, it was clear to Kavanaugh (as well as to Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan, who joined his opinion) that the iPhone users were direct purchasers from Apple and therefore could bring an antitrust lawsuit against the company, because they “bought the apps directly from Apple.”

Kavanaugh’s opinion for the court rejected Apple’s argument that the iPhone users could not bring their lawsuit because the app developers, rather than the company, set the retail prices that the iPhone users ultimately paid. First, the opinion stressed, such a theory is inconsistent with both the text of federal antitrust laws – which allow “any person” who has been “injured” by an antitrust violator to bring a lawsuit – and with Illinois Brick’s “bright line” between direct and indirect purchasers. Second, the majority explained, if a retailer is violating antitrust laws and consumers are paying higher prices as a result, the consumers’ ability to bring a lawsuit shouldn’t hinge on how the retailer has set up its relationships with suppliers. Third, the majority reasoned, “Apple’s theory would provide a roadmap” for it and other companies to set up their relationships to “evade antitrust claims by consumers and thereby thwart effective antitrust enforcement.”

The majority acknowledged that, as Apple had suggested, it might be hard to calculate the damages that iPhone users have suffered if they ultimately prevail. But, Kavanaugh wrote, that is “hardly unusual in antitrust cases” and certainly not a reason to squelch such lawsuits altogether: “Illinois Brick is not a get-out-of-court free card for monopolistic retailers to play any time that a damages calculation might be complicated.” Nor did the prospect that app developers could also sue Apple, seeking to recover the profits that they might have earned in a competitive retail market, weigh against allowing the iPhone users’ lawsuit to go forward, because “the two suits would rely on  fundamentally different theories of harm and would not assert dueling claims to a common fund.”

Justice Neil Gorsuch dissented from the ruling, in an opinion joined by Chief Justice John Roberts and Justices Clarence Thomas and Samuel Alito. Gorsuch criticized as overly simplistic what he characterized as the majority’s “revisionist” view of Illinois Brick. The iPhone users’ claims rest “on just the sort of pass-on theory that Illinois Brick forbids,” Gorsuch concluded. But if all that matters is whether the plaintiff transacts directly with the defendant, Gorsuch suggested, then the court’s rule “exalts form over substance,” and Apple will be able to get around the test by restructuring its contracts so that the iPhone users pay the app developers, who in turn pay a commission to Apple. If the court is going to “begin whittling away” Illinois Brick “to a bare formalism,” Gorsuch complained, it should do so after a more thorough airing of the issues, rather than in a case in which even the plaintiffs affirmatively declined to ask the court to overrule its precedent.

Although today’s decision only allows the lawsuit against Apple to go forward, it could ultimately prove quite costly: If Apple is later held liable on the merits, it could have to pay millions of dollars of damages. And other companies that operate similar “electronic marketplaces” could also find themselves the targets of lawsuits in the future.

This post was originally published at Howe on the Court.

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