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November 14, 2006

More coverage of Belmontes

How Appealing links here some of the major media coverage of the Supreme Court's decision yesterday in Belmontes (basics here; commentary here).  Linda Greenhouse in this piece provides this intriguing insight on the probable reason why the first decision this Term was a 5-4 split:

No one at the court on Monday could remember a term that began with a 5-to-4 decision. But while this decision might, on the surface, suggest that the current court is on the way toward setting a record for internal division, that is not necessarily the case.  A more likely explanation is that much of the majority opinion was in fact drafted last spring, before the court agreed to hear California’s appeal.

The entry on the court’s public docket shows that while the state’s appeal was pending the justices discussed it nine times at closed-door conferences.  With cases typically being discussed only once or twice, if at all, nine is an unusually high number.  It suggests that a group of justices was trying to win majority support for an opinion that would decide the case summarily, without argument or further briefing. The failure of such an effort typically results in a compromise decision to accept the case for argument, with much of the opinion already having been drafted.

November 14, 2006 at 08:28 AM | Permalink


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"Nine times?"
"Nine times."

---"Ferris Beuller's Day Off"

Posted by: Anne | Nov 14, 2006 2:08:50 PM

When a case is re-scheduled for conference multiple times, it often means that a per curiam opinion or a dissent from denial of cert. is forthcoming.

I think Linda Greenhouse has it nailed. This was going to be a per curiam opinion, and they decided to schedule it for oral argument instead.

Posted by: Marc Shepherd | Nov 14, 2006 3:17:46 PM

George Will has a novel suggestion this morning (6/16). Instead of splitting the 9th, split the Supreme Court--one Court to handle the 9th Circuit and the other Court to handle all of the other Courts.

Posted by: Ward | Nov 16, 2006 11:38:23 AM

Correction- the George Will column is on 11/16.

Posted by: Ward | Nov 16, 2006 11:40:49 AM

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