Per curium order w/multiple concurring ops saying they join order for sake of issuing judgement. cf Souter in Hamdi?https://twitter.com/chrisgeidner/status/675385513281462276 …
@JoshACLU But, again, the point is premised on the idea that there are three different judgments being sought, and no majority for any.
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@chrisgeidner yeah, but similar in Hamdi. 4 to remand for further process; 4 to order immediate release; 1 to affirm. -
@JoshACLU Well, 4-3-2, but, the point being that when they joined, you got over 5 (they got 6). That possibility is less likely here.
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@JoshACLU Even if the more liberal justices joined Kennedy in supporting a remand, it's still 4-4. You'd need the chief to join it, too. -
@chrisgeidner yeah it would be concurrences from right and left. Otherwise no majority to do anything which means affirmance by default -
@JoshACLU Thanks, Josh. I'm aware of that, as is Dorf, and his piece discusses why that's dumb in this situation. -
@chrisgeidner Yeah, of course you (and Dorf) know! I was just speculating they would do it by per curiam order. -
@JoshACLU Right. I just don't know how they get to 5. Unless the chief is willing to concur in judgment on a per curium. -
@chrisgeidner it's an interesting game of chicken. The incentive is also on the conservatives to join or else liberals win by default. 1/2
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