There has been an active exchange in the comments regarding the Court’s failure to call for a response to the jurisdictional statements in the case before noting probable jurisdiction. My bet is that the Court took that step not because it didn’t want to hear from Texas, but because calling for a response would have precluded hearing arguments in March 2006 as the Court intends. Given the numerous relists, it seems likely that the Court secured enough votes to note jurisdiction, or finally agreed on which questions to consider, only at last week’s conference. By that time, it was simply too late. Given that the posture of the cases is relatively clear, the Court could be relatively certain that there was no unseen jurisdictional obstacle to review that would have been pointed out in a motion to affirm.
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