[lambo]

It only requires four votes for a grant of certiorari (which I think you know, since I seem to recall from reading other posts that you're a lawyer). The question is whether Scalia voted for cert. and then recused himself, or didn't participate in the vote. My guess is that he didn't vote. That means Rehnquist, Thomas, O'Connor and Kennedy (at least) voted to grant. Stevens and Ginsburg will vote to affirm. Souter and Breyer are the swings, and I'll just bet one of them votes to overturn.

[aristeides]

I agree. A way will be found for the Supreme Court to reverse. The Supreme Court is not going to commit institutional suicide, which is what affirming the Ninth Circus in this case would amount to.

And I don't think the four votes needed to grant cert would have been found unless people were pretty sure there's going to be a reversal.