"My talk today is titled, “The Elusive Fifth Vote.” The idea for this talk derives from exchanges I had with Phil Frickey after the Supreme Court decided Plains Commerce Bank 5-4 in 2008. We had talked about co-authoring a paper with the hope of identifying a fifth vote in favor of tribal interests in a future case. Unfortunately, Phil walked on before we could write this paper.

The longer paper will focus on the five Justices that voted against tribal interests in Plains Commerce Bank. While the composition of the Court has changed since this case, the five Members in the majority remain on the Court. They are Chief Justice Roberts, and Justices Scalia, Kennedy, Thomas, and Alito. Interestingly, the toughest questioning in the PCB case came from Justice Scalia to the Bank’s attorney Paul Banker, who had no answer as to why the Bank (which had drafted the loan documents at issue) never made clear what the proper venue (state or tribal) would be in a foreclosure action. Regardless, Scalia joined Chief Justice Roberts majority opinion.

These five Justices form a block that is a tough nut to crack in many cases. Four of them are truly reliable votes in virtually all constitutional law cases, with Justice Kennedy the only one of the five likely to stray on occasion. This, of course, puts Justice Kennedy in the apparent role of swing vote, even if he is really a very conservative Justice.

But Justice Kennedy isn’t necessarily a swing vote in Indian law cases. As part of the preliminary research into the paper, Phil and I concluded Kennedy voted against tribal interests even more than Scalia. Moreover, we don’t have much of a track record to go on in regards to Chief Justice Roberts and Justice Alito.

Nonetheless, at least for this Term, my suspicion is that Justice Kennedy will be the most important Justice in the Indian law cases (I’m assuming there will be more than one) in this Term."

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Why Justice Kennedy Could Be the Most Important Justice in the 2010 Term in Indian Law Cases (Turtle Talk 10/8)