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Factbound And Splitless: The Certiorari Process As A Barrier To Justice For Indian Tribes, Matthew L.M. Fletcher
Factbound And Splitless: The Certiorari Process As A Barrier To Justice For Indian Tribes, Matthew L.M. Fletcher
Matthew L.M. Fletcher
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 …
Factbound And Splitless: Certiorari And Indian Law, Matthew L.M. Fletcher
Factbound And Splitless: Certiorari And Indian Law, Matthew L.M. Fletcher
Matthew L.M. Fletcher
The Supreme Court has long maintained that the certiorari process is a neutral and objective means of eliminating patently frivolous petitions from consideration, but it is well known that the Court is far more likely to grant a cert petition when it questions the outcome below. This qualitative 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 – and may prejudice certain classes of petitioners. Cert pool clerks applying the subjective certiorari criteria – such as whether there is a legitimate split in …