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Plains Commerce Oral Argument: Impressions April 15, 2008

Posted by rezjudicata in SCOTUS.
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Turtle Talk and Legal Times have written interesting first impressions of oral argument. We’ll see if we can add anything here.

What we learned from oral argument, which all-in-all went better than expected for tribal interests:

1) The Court’s two newest members, Roberts and Alito, hold narrow opinions of tribal sovereignty. The Chief Justice and Alito took the lead in peppering the Long Family’s attorney with questions and hypotheticals mostly designed to point out general problems with tribal jurisdiction over nonmembers. To this end, Roberts made thinly veiled reference to tribal legal research obstacles and how a bank could know it dealt with an ‘Indian’ corporation. And Alito even attempted to rehabilitate the Bank’s argument after it withered under attack from Scalia, Souter, and Ginsburg. But even so, neither Justice managed to drive a convincing wedge between ‘Montana 1′ and the facts in this case.

2) None of the Justices seriously challenged the applicability of the facts to ‘Montana 1.’ The Bank’s attorney weakly argued that ‘Montana 1′ required some sort of consent to jurisdiction, rather than simple consent to a commercial relationship. The Justices easily disposed of this argument alternately pointing out that the Bank’s interpretation would either eliminate ‘Montana 1′ or require ‘Montana 2′ to be satisfied first. And even Montana‘s sinister offspring-Hicks and Strate-never suggested that interpretation.

To the cynic, this suggests that the Court will have to do violence to Montana to overrule the 8th Circuit, perhaps even categorically reject nonmember jurisdiction. Less cynically, the Court could uphold the 8th Circuit, but limit it to its facts, thereby limiting the scope of Montana 1.

3) Though animating some of the Chief Justice’s comments, the tribal jurisdiction-over-nonmembers-is-unfair-argument never became explicit. The Bank’s attorney, at the end made a half-hearted attempt to inject due process into the argument. But none of the Justices seemed all that interested in his point.

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