By Angelique EagleWoman. 114 Penn St. L. Rev. Penn Statim 41.
Published July 9, 2010. View as PDF.
Preferred Citation: Angelique EagleWoman, A Constitutional Crisis When the U.S. Supreme Court Acts in a Legislative Manner? An Essay Offering a Perspective on Judicial Activism in Federal Indian Law and Federal Civil Procedure Pleading Standards, 114 Penn St. L. Rev. Penn Statim 41 (2010), available at http://www.pennstatelawreview.org/114/114 Penn Statim 41.pdf.
A Constitutional Crisis When the U.S. Supreme Court Acts in a Legislative Manner? An Essay Offering a Perspective on Judicial Activism in Federal Indian Law and Federal Civil Procedure Pleading Standards
By Angelique EagleWoman (Wambdi A. WasteWin)
The United States Supreme Court is one of the three branches of federal government in the U.S. governmental system of checks and balances. The primary purpose of the Court is to resolve live controversies as final arbiter on the interpretation of the U.S. Constitution and the federal legislation implementing that foundational document. For scholars of federal Indian law, the U.S. Supreme Court has acted extra-constitutionally since it first heard a case involving tribal rights and has continued its “legislative” function in this area of the law ever since. Recently, the Court has stepped outside of the bounds of textual interpretation by creating a new level of civil pleading standards based on a “plausibility” requirement, rather than on the established Federal Rules of Civil Procedure notice pleading standard. While the judicial activism and unrestrained extra-textual interpretations in federal Indian law have been known to a core group in the field, the Court’s recent unmooring of civil pleading standards from the Federal Rules and settled precedent has come as a shock to many.
This essay will examine the U.S. Supreme Court’s judicial activism in relation to federal Indian law as a beginning point to discuss the recent introduction of the “plausibility” requirement in federal pleading sufficiency determinations. By examining the decisional law in the field of federal Indian law, the claimed power by the Court to redefine the legal status of Tribal Nations will become apparent. Next, the consequences of the U.S. Supreme Court’s unfettered ability to reshape law and limit access to the federal courts will be discussed. Finally, the essay will offer some conclusions on the constitutional crisis presented by the Court’s lack of judicial restraint in the legislative and political arenas. [keep reading]