Factbound and Splitless: The Certiorari Process as Barrier to Justice for Indian Tribes

An empirical study of 163 preliminary memoranda, recently made available when Justice Blackmun’s papers were opened, demonstrates that the Court’s certiorari process is neither objective nor neutral. The research, reflecting certiorari petitions filed during October Term 1986 through 1993, demonstrates that 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 to far more petitions filed by opponents of tribal sovereignty.