I have no idea why Justice Scalia recused himself. (And, as you
know, I remain unpersuaded that he was in fact under a duty to do
so.) But let's assume that there is evidence that he did it in
order to create the win-win situation that Richard Duncan
initially hypothesized. I.e., A 4-4 affirmance
It's certainly possible that there's a problem of this kind with the
theory. I don't actually believe that the theory explains Scalia's
decision. However, it's possible that 4 justices care enough about
affirming the 9th Cir. decision that they're willing to risk the adverse
political
I just want to take this opportunity to become the first person (or at
least the first person known to Sanford Levinson) to express the hope that
the Supreme Court does affirm the 9th Circuit, even though I agree that
it's unlikely they will do so. I too believe the 9th Cir. was right on the
