At least one, if not all of these four, Scalia, Thomas, Roberts and Alito, is complicite in this ruling.
I would bet money it’s not Scalia or Thomas, the other two I’m not so sure about
There is no recorded dissent, so it appears that all four are.
Para-Ord.45,
From what I’ve heard in the last day or so, we needed 5 - not 4 - Justices to stop this freight train.
Here’s why:
It takes 4 Justices to grant “cert,” short for Certiorari, i.e., for the Supreme Court to agree to hear the case.
But this case didn’t get to this the Supreme Court via a request for cert. Because the entire case is moot if the Obama-ordered and 2nd Circuit approved sale of Chrysler’s assets to “New Chrysler” (Fiat + the federal government) is allowed to go through, this case got to the Supreme Court via an application for a STAY, i.e., a request for an injunction to stop the sale. And a stay requires 5 Justices to vote YEA. (Example: Back in 2000, we needed 5 Justices to issue a stay to stop the Florida recount in Bush v. Gore.)
So Thomas-Scalia-Roberts-Alito could have all voted YEA, and that wouldn’t be sufficient. And I’ll bet that’s what happened, too. The 4 could not convince the emotionally unpredictable Kennedy to join them.
I have a question, and a theory.
First, the question. Did the bondholders actually cite the Constitutionally protected rights of secured bondholders in their filing? I don’t remember seeing that issue raised, only a Constitutional challenge to the government’s authority to use TARP money to assist Chrysler.
My theory here is that one or more members of the constructionist wing (Scalia, Thomas, Roberts, Alito) had good reason to believe that Kennedy (the ‘swing’ vote) would not come down on their side, so they would rather not involve the Supreme Court at all and codify this into law.
Furthermore, they may have felt that the Indiana Pensioner’s case was not strong enough, quite possibly because they wanted to do the right thing but for the wrong reason, and they knew this case as presented by the plaintiff’s lawyers had no chance of prevailing in the court.
And remember, it is always better for the Court to remain silent on an issue than for it to hand down the wrong ruling. This may have been the very best option of a few very bad options Scalia, Thomas, Roberts, and Alito had available.