In fairness, it ought to be observed that the court will often write opinions which touch on matters far beyond the actual necessity to justify the opinion. That was the situation in perhaps the most important case ever decided by the Supreme Court, Marbury versus Madison, where the opinion gave the court the power to issue an order (which the court declined to issue, finding an excuse.) In other words, Chief Justice John Marshall knew that Jefferson would not obey an order concerning his appointees, so Marshall wrote an opinion saying we could issue such an order if we wanted to, we can decide this case if we feel like it which means that the court could decide the constitutionality of federal actions, but we don't feel like it today, at least not in this case, thank you very much.
So if a litigant goes to the federal courts and says, give me an advisory opinion, that is an opinion in the air, unattached to an order, the court will throw him out. But on its own, the court might undertake an excursion afield and lecture the world about what is right and wrong, prudent or imprudent, fair or unfair, and then issue an order very limited in scope as it affects the rights of the parties. Such excursions are usually called dicta and have not the force of law but are warning signs to litigants and lower courts about the thinking of the author who may be in the majority or the minority.
So it is conceivable that the court would accept one or more of these cases, not dismiss it for want of standing, not dismiss it as a political question, and nevertheless decline to issue the order that removes Obama from the Oval Office. This was much the situation in Marbury versus Madison. In between the acceptance of the case and the issuance of the order, the court could conceivably lecture the country about the definition of a natural born citizen, the proper venue and mechanics for determining same, but nevertheless decline to order the Kenyan born Obama to relinquish Air Force One because the claimants have failed on some technicality.
This would preserve the reputation and power of the court because it would not have issued an order which could be ignored. It would set out the Court's desire as to how these matters should be treated in the future which would probably be observed in practice. It would spare the country riots.
It would, however, certainly diminish the moral authority of the president. Chief Justice Marshall actually wanted to diminish the real and moral authority of President Jefferson. They were political enemies. I do not believe that we can find five members of the present Court who want to leave the nation with a crippled President in the nuclear age when we are making war on two fronts, when we are threatened with terrorist attacks in the homeland, and when we face one of the greatest financial crisis in history, just so they can unburden themselves of dicta .
