Review of The Erosion of Tribal Power: The Supreme court's Silent Revolution

Document Type

Book Review

Publication Date



Speculation about the reasons why American Indian tribes tend to lose badly in the U.S. Supreme Court almost always extends beyond the written opinions of the court. Supreme Court majority opinions tend to be dry and minimal, answering obliquely only the question presented, and authored by only one justice. Dissents and concurrences are far more interesting reading, but they have already failed to win the day. In most cases, we never see or hear the actual reasoning of a majority of judges on the court.

The opening up of the internal correspondence of the Supreme Court justices to public scrutiny by Justices Thurgood Marshall and Harry Blackmun dramatically expands the universe of knowledge about the court. In these documents, which were never intended for public consumption, we see candid back and forth between the justices that is often surprising, or even jarring.

The Erosion of Tribal Power delves into these papers to reveal the story of why the Supreme Court shifted away from protecting tribal interests, as the Warren Court of the 1960s did, and toward undermining them in the Burger and Rehnquist courts. During the Warren Court, tribal interests prevailed before the court in slightly more than half of cases. By the end of the Rehnquist Court, that win rate had declined to around 20 percent, less than that of convicted criminals.


Work published when author not on Michigan Law faculty.