Rick Pildes writes:


4 justices are sufficient to require that probable jurisdiction be noted in 
a case in the Court's appellate jurisdiction (just as 4 are sufficient to 
grant cert.).  Thus, the Court cannot summarily affirm an appeal by a 5-4 
vote, if the 4 dissenters vote to note probable jurisdiction.  And I do not 
know whether there's any mechanism by which a Justice, in a mandatory 
appeal like the Texas case, can vote to dissent from an affirmance without 
also voting to note probable jurisdiction.

Rick Pildes
An-Bryce Professor of Law, New York University School of Law
Visiting Professor of Law, Harvard Law School (Jan.-May 04)
Griswold Hall Room 507
Cambridge, MA 02138
office:  617-495-9083
home:  617-491-0489
fax:  617-496-5156