The Bluman case was on the Supreme Court’s conference list last week.  (Background on the issues in the case here.)

Because the case came up on an appeal rather than a cert. petition (a rarity outside of election law, but fairly common among election law cases), the Court’s decision to hear or not hear the suit matters.  When the Court denies cert., that decision has no precedential value.  For example, it does not indicate that the lower court got it right.  But when the Court gets an appeal, it can summarily affirm, summarily reverse, dismiss, or set the case for argument.  When the Court does something short of hearing an appeal, that decision does have some precedential value, indicating (in the case of a summary affirmance) that the lower court reached the right result (although not necessarily for the right reasons).

If a majority of the Court were inclined to summarily affirm in this case (the most likely outcome, if I had to guess), we might not see that decision issued Monday morning.  That’s because one or more Justices could write a dissent from the summary affirmance.  (On this, my money would be on Justice Thomas, and perhaps Justice Alito.)

In fact, we might go many weeks or longer before we know what happens in this case.  In my 2003 book, The Supreme Court and Election Law, I discuss the fate of the famous case of Harper v. Virginia State Board of Elections, which started out as a summary affirmance in favor of the constitutionality of the poll tax, accompanied by a bitter dissent from Justice Goldberg.  Justice Black did not like what he saw in that dissent, and agreed to a full hearing.  This delayed a decision a long time.  Long story short, he got burned as three Justices changed their minds when the Court heard the case, leading to an opinion striking down the poll tax and a dissent by Justice Black.  (My book reprints the draft Goldberg dissent in an appendix.)

For more background on the role of the three-judge court in election litigation, I highly recommend the work of Michael Solimine, including his most recent piece on the topic.