One final thought tonight: One of the big issues discussed among
readers of the lower court opinions (or at least "skimmers" of the 1800
page lower court opinions---I think that there were probably fewer than
100 people not working on the case as lawyers or at the courts who
actually read it) was how the Supreme Court was going to deal with the
lack of a majority of factual findings of the three-judge court. (See
my point number 5 from this
May 7 post.)
So far as I can tell from the opinions for the Court (I have barely
skimmed the dissents at this point), the issue never was raised. (If
there is a footnote addressing this issue that I have overlooked on my
first way through, please let me know!) Thus, the court cites to this
or that opinion of one or more of the lower court judges, without
considering whether it was a factual finding supported by a majority of
the lower court judges. Indeed, I was struck by the large number of
citations in the Stevens/O'Connor opinion to Judge Kollar-Kotelly's
opinions, including those parts which I believe she made findings not
joined by the other two judges.
--
Rick Hasen
Professor of Law and William M. Rains Fellow
Loyola Law School
919 South Albany Street
Los Angeles, CA 90015-1211
(213)736-1466
(213)380-3769 - fax
rick.hasen@lls.edu
http://www.lls.edu/academics/faculty/hasen.html
http://electionlawblog.org