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.