A Matter of Trusts
What a lonely dissent in a trusts case tells us about Sonia Sotomayor.
Photograph by Jose Cabezas/AFP/Getty Images.
If you’ve ever found yourself in a debate with a room full of brilliant people at the end of which not a single mind is changed, you know what it’s like to be a Supreme Court Justice on the losing end of an 8-1 decision. Nobody thinks you have the better end of the argument and your opinion tends to be less interesting for what it says about the matter at hand than for what it seems to say about you.
That’s why 10 Supreme Court decisions from last term, all of them decided 8-1, deserve a little more scrutiny. When a justice writes a lone dissent, she opens a window into her jurisprudence. Look closely, and you can see what worries her most. Last term, only one such dissent received widespread attention, when Justice Samuel Alito broke from the majority in Snyder v. Phelps. Alito sided with Albert Snyder, the father of a fallen soldier who sued the Westboro Baptist Church for picketing his son’s funeral. Snyder had all the makings of a blockbuster case: two compelling parties, a pressing issue, and a result that made all but the most devoted free speech purists a little queasy. Another case from last term, U.S v. Jicarilla Apache Nation didn’t have any of the same advantages. A dispute involving attorney-client privilege and a mismanaged trust, Jicarilla combined the gray tedium of case law with the byzantine complexity of the Bar exam. When the decision was handed down in June, even in legal circles, it barely made a ripple.
It should have. For Jicarilla, like Snyder boasted a powerful solo dissent—this time from Justice Sonia Sotomayor—the first and only one she has authored in two years on the Court.
As Supreme Court cases go, Jicarilla is a legal variant of the classic “duck test.” If the government acts like a trustee and calls itself a trustee, should it be treated like a trustee when a disgruntled beneficiary drags it into court? The Jicarilla Apache Nation thought so. In 2002, the tribe sued the federal government for $300 million for mismanaging its trust fund. The lawsuit remains unresolved. What the Court took up is whether the government is obliged to turn over all the legal documents related to its management of the trust. The overwhelming majority of the contested documents were handed over long ago, but the Tribe was seeking 155 more. It may seem strange to hold up such a large lawsuit over a handful of documents, but ask yourself why the government might be inclined to withhold them, and you’ll know why the tribe pursued the case all the way to the Supreme Court.
The government claimed these documents constituted legal advice protected by attorney-client privilege (the government being both the attorney and the client in this case). The reason for the privilege is simple: If lawyers thought their advice could become part of the public record, they would give their clients less of it. But trust law is a little different. Because a trustee must represent the interests of the trust’s beneficiaries, the courts have held that the beneficiaries are the real clients and entitled to review any legal advice the trustee has received.
In Jicarilla, the lower courts ruled that the role the government played was close enough to that of a private trustee that it could be forced to hand over all legal documents. The government appealed, arguing that, even while it is performing its trustee responsibilities, it is also acting in a separate capacity as the sovereign. In other words, it has two separate interests: those of the government and those of the tribe. As such, the trust law exception to attorney-client privilege should not apply, and the government should not be obliged to hand over every document related to its management of the trust.
This was enough for Justice Ruth Bader Ginsburg, who penned a narrow concurrence that Justice Steven Breyer joined. But in a majority opinion that all five conservative justices signed onto (Elena Kagan recused herself) the court used Jicarilla as an opportunity to take aim at the idea the federal government should ever be held to obligations not expressly authorized in legislation.
John Paul Rollert is a doctoral student at the Committee on Social Thought at the University of Chicago. His essay Reversed on Appeal: The Uncertain Future of President Obama's "Empathy Standard" was recently published by the Yale Law Journal Online.