Cases to be Held Over and Reargued
I had predicted that four cases were the most likely candidates to be reargued next Term when Justice Alito (presumably) will be on the Court, because in each of the four I figured that there was a good chance Justice O’Connor would be the swing vote and that a Justice Alito would come out the other way. Those four cases were Ayotte, U.S. v. Georgia, Wisconsin Right to Life, and Katz.
Shows what I know: I’m batting 0-4. In the first three cases, the Court acted unanimously, and in each case it gave a strong signal that the Court is inclined — at least as to some controversial subjects as to which there is not yet a solid Court majority — to act incrementally, on a case-by-case basis, and to disfavor facial challenges (see post below).
So, now that Justice O’Connor has probably cast her last vote, does anyone else have any candidates among the remaining 20 argued cases for those that might be set for reargument? It won’t take much to top my prognostication record.
What do you think of Hudson v Michigan, the “knock and announce/exclusionary rule” case. Subtracting O’Connor, the Court appeared possibly split 4-4 at argument (and from past performance, given that some justices–e.g. Thomas–asked few questions.
Comment by tab — January 23, 2006 @ 12:07 pm
This one may be obvious, but I’ll offer it anyway. I’m thinking of House v. Bell, the contentious death-penalty case that divided the en banc Sixth Circuit 8-7. Given SOC’s decisive votes in recent death cases (e.g., Rompilla, reversing Alito) and her key role in the Court’s “actual innocence” jurisprudence (e.g., Schlup v. Delo), I would expect her to play an equally important role in the House decision. Of course, an order setting the case for reargument would probably be pretty bad news for Mr. House.
Comment by LegalThoughts — January 23, 2006 @ 3:36 pm
A candidate is Buckeye v. Cardegna, No. 04-1264, argued November 30, where the question presented is whether an arbitration agreement in an illegal agreement is enforceable (restated). I am one of the attorneys for Cardegna and I can say based on the oral argument that the vote could come out just about any way, including 4-4 (minus O’Connor).
Comment by Chris Casper — January 24, 2006 @ 5:08 pm