posted by Gerard Magliocca
Based on the comments coming out of this morning’s oral argument in Perry, it appears that there are only two possible outcomes:
1. Petitioners have no standing. The Ninth Circuit opinion is vacated.
2. The writ of certiorari is dismissed as improvidently granted. The Ninth Circuit opinion stands.
Now here’s my question. Can a concurring opinion that does the latter count as a “controlling opinion” of the Court for purposes of ascertaining the holding? I guess it does, though arguably it does not because it is not really an opinion at all. Any precedent on that?