A hint on Hollingsworth from a criminal case?

[For those reading on the website, if you see only one paragraph, for the full post, click on the heading above.]

At oral argument in Hollingsworth v. Perry, the Prop 8 case, Justice Kennedy openly wondered whether the case had been "properly granted" and hinted that an appropriate resolution might be to dismiss it as improvidently granted (or DIG it, in the shorthand of the Court. A DIG would mean that the Court would simply decline to decide the case as if it had never granted it in the first place, and the Ninth Circuit judgment would stand. As Tom Goldstein observed, such an outcome is seen as unlikely because, presumably, the four conservative justices would oppose it. And if five justices could DIG a case over the objections of four, then the rule of four -- it takes four votes to grant certiorari -- would be in jeopardy. Today, however, that is precisely what happened. In Boyer v. Louisiana, the Court DIG'ed a case involving a criminal defendant's challenge to his conviction over the dissents of the four liberal justices.

There are of course differences between Boyer and Hollingsworth. For one thing, in a concurrence, three members of the Boyer majority (Justice Alito, joined by Justices Thomas and Scalia) argued that the facts of the case, as they emerged during briefing and argument, were different from the factual assumptions that led to the grant. Nothing similar is likely to happen in Hollingsworth. On the other hand, the long time from argument (October 5, 2012) to decision (April 29, 2013) suggests that there was some jockeying and negotiation going on among the justices -- generally a DIG occurs fairly quickly after oral argument, even where there are separate opinions. So the fact that the Court has not yet DIG'ed Hollingsworth should not lead to the conclusion that it won't.