An attack on Morton could set the stage for a wholesale gutting of federal Indian law. On Tuesday, however, only Roberts seemed eager to go that far in resolving the case of Baby Girl. Roberts has long made clear his contempt for what he has called in another context the "sordid business" of "divvying us up by race." Tuesday he seemed outraged that the child is only 3/256 of Cherokee "blood." He asked, "is it one drop of blood that triggers all these extraordinary rights?"

Remarkably enough, Scalia seemed to know more Indian law than anyone on the bench. He corrected Roberts's distorted notions by pointing out that federal law sets the rules for recognition of tribal membership.

Scalia, however, was mostly concerned with the rights of a biological father. The key question in the case was whether the father was a "parent" under the Act. State law said he had given up his rights; but the Act specifically protects "any biological parent" except "the unwed father whose paternity has not been acknowledged or established." The father had turned his back, but his biological paternity was unquestioned. "This guy . . . is the father of the child . . . and they're taking the child away from him even though he wants it," Scalia said to Blatt. "[I]t seems to me he's the father, the other woman's the mother, that's the--that's the Indian family, the father, the mother and the kid."

Kennedy seemed troubled that the statute might displace state custody rules, which center on "the best interest of the child." Alito sounded concern for state law as well. "[F]amily law is traditionally a State province," he asked Edwin Kneedler of the Solicitor General's Office, who argued in support of the Act, "but your argument is that Federal law can take a traditional family law term like 'parent' and perhaps others and give it a meaning that is very different from its traditional meaning or its meaning under State law?"

And Breyer posed this bizarre hypothetical to Charles Rothwell, representing the father and the tribe: "a woman who is a rape victim who has never seen the father could, would, in fact, be at risk under this statute that the child would be taken and given to the father who has never seen it and probably just got out of prison, all right?" Rothwell responded that the Act allows termination if there is a danger of "serious emotional or physical damage to the child."

On the other side, Justice Sonia Sotomayor was on fire in her eagerness to defend the Act. Her questions for Blatt and Clement were so aggressive that she was shushed like a child not once but twice, first by Roberts and next by Scalia. Justices Ruth Bader Ginsburg and Elena Kagan seemed to be leaning toward support for the statute. Breyer, and his haunting hypothetical, may hold the balance in what seems likely to be a 5-4 decision.