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 Court has the power to do that. 


Richard Pildes
Sudler Family Professor of Constitutional Law
Co-Director, NYU Center on Law and Security
NYU School of Law
40 Washington Sq. So.  NYC, NY 10012
phone:  212 998-6377
fax:  212 995-3662

-- 
Rick Hasen
William H. Hannon Distinguished Professor of Law
Loyola Law School
919 South Albany Street
Los Angeles, CA  90015-0019
(213)736-1466 - voice
(213)380-3769 - fax
rick.hasen@lls.edu
http://www.lls.edu/academics/faculty/hasen.html
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