There are some oral arguments in which it becomes apparent that the court made a mistake in granting certiorari. Monday’s argument in Lewis v. Clarke is one of those cases. As described in my argument preview, the case involves a car accident in Connecticut in which the defendant was an employee of an Indian tribe, which asserted a defense of sovereign immunity. The case exposes some interesting problems in the court’s jurisprudence regarding sovereign immunity generally, the characterization of claims for sovereign immunity purposes and the scope of Indian tribe immunity. But the oral argument leaves the impression that the court may have bitten off more than it can chew. Given the absence of a ninth vote, the most likely result is a punt.

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