I’m also a bit concerned about the prospect of a fractured Court. And, based on oral arguments, I’d be very surprised if we don’t see at least a 3-way split. (Not to mention the further complication of having two different cases.) Only time will tell though I suppose.

The way I see it, the Court refuses (rightly or wrongly) to take sides in the utilitarian v. retributive debate, and therefore finds itself in the impossible position of having to pass on the constitutionality of something that is clearly rational in a consequentialist sense (locking someone up for life for a serious crime), but likely not rational or reasonable from a retributive sense.

It also doesn’t help that the Court has no clear idea of what utilitarian or retributive goals they should even been addressing (once they address them) – deterrance only? Scalia trends that way. Rehabilitation? That question comes up in oral argument, but the court doesn’t take it very seriously. Expressive retributivism (ala Dan Markel’s paper from a few years back on limiting the death penalty)? Pure desert? I doubt the Court really even understands such distinctions, but their presence pervades the opinions in these types of cases.

The Court is clearly riffing on theories its members (and their clerks) haven’t thought through, and the results seem likely to suffer because of it.

Funny, I was trying to figure that out myself. The big variable was Bilski in the afternoon. Crim cases don’t draw an audience of bar members but patent cases do, and I wasn’t sure whether the patent folks would show up for the morning arguments to get a seat for Bilski and therefore crowd out the people who wanted to go for Graham and Sullivan. (I assume they keep the same seating for morning and afternoon arguments?) I ended up working late on edits so I didn’t try to go in the morning, but I was wondering about the same timing question.