Matthew L.M. Fletcher: Cited in the Supreme Court

This is the first of a series of posts about scholars cited this term in the U.S. Supreme Court. 

Matthew L.M. Fletcher, a well known scholar of federal Indian law, is Professor of Law at the Michigan State University College of Law. A graduate of Michigan Law School where he was an editor of the Michigan Journal of Race and Law, he now runs Turtle Talk, a leading blog covering American Indian law and policy, and directs MSU's Indigenous Law Program.

Congratulations on being cited in the Supreme Court. What was the work and how was it used?

The work is The Supreme Court and Federal Indian Policy, 85 Neb. L. Rev. 121 (2006). Justice Thomas quoted me in his concurrence arguing in Adoptive Couple v. Baby Girl (No. 12-399) that Congress likely did not have authority to enact the Indian Child Welfare Act, 25 U.S.C. § 1901 et seq. The quote was in a parenthetical and read: "As a matter of federal constitutional law, the Indian Commerce Clause grants Congress the only explicit constitutional authority to deal with Indian tribes".

In your work, do you see the Supreme Court and other courts as the primary audience, are you writing for other scholars, or do you target both?

At the time I wrote this piece (summer of 2005), I was untenured and writing for second-year law students, hoping for the best placement possible. I guess that also means I was writing for other scholars in the field who focused on Indian law and the commerce clause. I am more cognizant of my audience now. I now focus particular papers on particular audiences -- tribal judges, Indian lawyers, and other scholars. Occasionally I do try to target national policymakers, including Congress and the courts. I was pretty successful, if I don't say so myself, with a paper I wrote on the Indian Gaming Regulatory Act, which has been cited by five different courts.

Do you do anything in particular to share your work with practitioners?

I operate a law blog (Turtle Talk) in which I distribute all of my work -- I believe that the large majority of regular readers are practitioners. I distribute an enormous amount of primary research material (court cases, briefs, etc.) that most interests practitioners. Turtle Talk, I am told, is required reading for the higher-ups at the Bureau of Indian Affairs, the Interior Solicitor's Office, and the OSG. We're also trying to reach federal and state court clerks. I also give talks to judicial conferences and practitioner-oriented Indian law conferences.

What’s your reaction to the view expressed by some jurists that much legal scholarship is useless to the legal system?

Inspiring. I wrote two papers on the influence of Indian law scholarship on the courts: here and here. Judges and their clerks often face a steep learning curve in Indian law cases, and they continue to rely upon Indian law scholarship quite a bit. I think the critique of legal scholarship overall, especially from someone like the Chief Justice, is made partially in jest. It is often true that much legal scholarship is more theoretical than a judge can use on a practical level to answer a hard question in particular case. I've written a couple pomo articles, and a few articles on law and literature, that I don't expect to cited by any court. But I know they have been consumed by an audience, no matter how small. Some judges do find legal scholarship to be badly done, or are overwhelmed by the sheer mass of law review articles from which to draw, and some of those judges are loudly critical. I even suspect without knowing that for some judges the source of the discontent may be the rise of speciality law journals, most especially those associated with social justice, race, and gender. While I think the critique is overblown, it is generating fascinating and fruitful interactions between scholars and judges.  

Are you happy with the way your work was used?

Well, not really, but I feel silly complaining about it. The quotation of my work was largely out of context, though it wasn't untrue. It is telling that the citations in the footnote to my quoted sentence were to a legal scholar that Justice Thomas also quoted in the same opinion that tends to agree with his view of federal power in Indian affairs, Sai Prakash, and to a Supreme Court opinion that Justice Thomas is rallying against, the lead opinion in United States v. Lara. In fact, I wrote the article as a response to Justice Thomas's separate opinion in Lara where he makes similar arguments to those he made in Adoptive Couple. Nevertheless, I'm thrilled to be cited by any court and in any brief, anywhere. I'm hoping the larger picture I'm trying to paint is being seen in chambers.

What advice do you have for scholars who want their work to be influential in the courts?

Balance and depth. And pay attention to subject matter. I say balance because there are always opposing arguments, and the better you recognize those arguments and respond to them, the more likely you'll be seen as a serious scholar. Depth, because you're going to get the attention of the judges and their clerks in their research by citing all the important cases and scholars. For example, I can imagine Justice Thomas's clerk came across my paper because I cited Prof. Prakash extensively, and also perhaps because another scholar whom Justice Thomas relied on (Rob Natelson) cited me so much. And finally, subject matter -- in Indian law, it appears the easiest way to be cited by a court is to write a paper on a particular statute, and cover that statute to death from legislative history to regulatory implementation to judicial construction. You focus on cases, the courts don't seem to pick up on it. The focus on statutes, I believe, helps the courts because they need the background material to understand the statute, and then hopefully they are more likely to digest the scholarship.

Did your family or colleagues do anything for you when the opinion case out?

I was at a fantastic Indian law workshop at UCLA hosted by Angela Riley that day, so I received a lot of good-natured ribbing there from the people who tended to disagree with Justice Thomas. Also, I received several emails from friends and colleagues around the country along the same lines. My wife and colleague, Wenona Singel, probably had the best response of all, but I won't describe it. It was too perfect for words.