Law

Supreme Court Justice Sotomayor sidelined in major cases

Thursday, November 12, 2015

President Barack Obama, right, with Appeals Court Judge Sonia Sotomayor and Vice President Joe Biden at the White House on May 26, 2009. Obama nominated Sotomayor to serve on the U.S. Supreme Court that day. Official photo by Pete Souza / Flickr

Indian Country's most reliable ally on the U.S. Supreme Court has been kept on the sidelines in major cases, according to a new study.

Justice Sonia Sotomayor joined the court in August 2009 and is the second-most junior member. That could be one reason why she has never been assigned to write a majority opinion in a high profile case since joining the court in August 2009, law professor Richard J. Lazarus wrote in the Harvard Law Review.

But even the most junior member, Justice Elena Kagan, who joined the court in August 2010, has been given a shot. She wrote one majority opinion in a "salient" case, according to the study.

"It nonetheless may be significant that Justice Sotomayor is the only Justice to have received no salient opinion assignments from the Chief during her six Terms on the Court," Lazarus wrote."Zero is inherently unique and in this particular context could be a bit portentous."

Sotomayor, though, has authored majority opinions in 35 other cases, according to Lazarus. That included the 2012 decision Salazar v . Ramah Navajo Chapter, a contract support costs case.

Although the study does not deem the case to be a major one, it was significant for Indian Country. The Obama administration announced a $940 million settlement to the long-running class action lawsuit in September.

Since 2009, Sotomayor has sided with tribal interests in four other cases: Michigan v. Bay Mills Indian Community in 2014; Adoptive Couple v. Baby Girl in 2013; Salazar v. Patchak in 2012; and US v. Jicarilla Apache Nation in 2011.

Tribes did not prevail in the outcomes of Adoptive Couple, Patchak and Jicarilla Apache but Sotomayor authored dissents supporting tribal interests in all three cases.

The single instance in which Sotomayor sided against tribal interests was US v. Tohono O'odham Nation, a trust relationship case from 2011. The ruling was unanimous against the Tohono O'odham Nation so it was not controversial at least in the eyes of the justices.

The Supreme Court will be resolving three Indian law disputes in its current term. They are: Menominee Indian Tribe of Wisconsin v. US, a contract support costs case; Dollar General Corporation v. Mississippi Band of Choctaw Indians, a tribal jurisdiction case; and Nebraska v. Parker, a reservation boundary case:

The Obama administration is seeking to add a fourth to the docket. The Department of Justice filed a petition in US v. Bryant last month.

Get the Story:
Chief justice favors some when assigning court’s major decisions (The Washington Post 11/9)
Locking in Votes and Doling Out ‘Dogs’: How Roberts Assigns Opinions (The New York Times 11/10)