The Supreme Court and the Rule fo Law: Indian Law Case Studies

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This past August, while accepting the "Rule of Law" award from the American Bar Association, Justice Breyer proclaimed that our constitutional system "floats on a sea of public acceptance." At that time, Breyer's statements were meant to highlight his expectation that the Court will decide its cases following the "rule of law," and if not, that the American public would take to the streets to resolve their disputes. However, Breyer's statement, while demonstrative of his faith in the rule of law, does not always ring true. In fact, as I argue, the Supreme Court often decides its cases by ignoring, rather than following, the rule of law. This problem is particularly acute in the body of federal Indian law - which has cast a disastrous shadow on tribal interests. Tribes have lost about three-quarters of their cases before the Supreme Court since 1988. Yet, curiously, prior to 1988, tribal interests won slightly more than half of their cases. What changed? The result of this obfuscation, I show, is an unrelenting assault on tribal interests before the Court - and the rule of law more generally. Analyzing federal Indian law in this manner makes transparent the Court's frightening disrespect for the rule of law.


Work published when author not on Michigan Law faculty.