Of course Rick P.'s second point is right, and I've certainly been sloppy in referring to a one-line post-argument affirmance as "summary."  It is "summary" in a sense, but not the sense one talks about when one talks about summary practice in the Supreme Court.

As to his first point, there's no formal rule, but to the extent that the Court applies the "Rule of Four" to direct appeals, it would ordinarily take six votes to affirm summarily at the JS stage.  See the Eighth Edition of Stern and Gressman at pages 332-333 for discussion of the practice and the exceptions when a justice in the minority is convinced that s/he'd never get a fifth vote even with plenary consideration.  The Court "can" do anything with five votes, as Justice Brennan used to tell his clerks.  But that doesn't mean it does.

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Rick Hasen <rick.hasen@lls.edu> 1/18/2006 9:51 AM >>>

message from Rick Pildes:

-------- Original Message -------- Subject: RE: WRTL oral argumentDate: Wed, 18 Jan 2006 10:46:14 -0500From: Rick Pildes <PILDESR@juris.law.nyu.edu>To: BSmith@law.capital.edu, Rick.Hasen@lls.eduCC: election-law@majordomo.lls.edu 

In response to Rick Hasen's questions, the Supreme Court decides cases -- all cases -- by majority vote.  First, the Court can choose to summarily affirm an appeal by a 5-4 decision, just as it can decide any other case by such a vote.  There are no supermajority voting rules for Supreme Court decisions (though historically, Congress has sometimes debated imposing such rules).  There is nothing obscure about this fact.The second question misunderstands the meaning of "summary" affirmance.  "Summary" means without the full legal process of briefing on the merits and oral argument.  Once a case has gotten to that stage, whatever the Court's actions might be, they are no longer through "summary" process.  "Summary" does not mean by a short opinion; indeed, some summary affirmances involve long opinions and dissents.  If the question is could the Court choose to issue a one-line decision in which it said, 5-4, we affirm for the reasons stated in the opinion below, sure -- the Co!
 urt has the power to do that. Richard PildesSudler Family Professor of Constitutional LawCo-Director, NYU Center on Law and SecurityNYU School of Law40 Washington Sq. So.  NYC, NY 10012phone:  212 998-6377fax:  212 995-3662
-- Rick HasenWilliam H. Hannon Distinguished Professor of LawLoyola Law School919 South Albany StreetLos Angeles, CA  90015-0019(213)736-1466 - voice(213)380-3769 - faxrick.hasen@lls.eduhttp://www.lls.edu/academics/faculty/hasen.htmlhttp://electionlawblog.org