The Supreme Court might be planning for a split-decision in June.

[onenote]

8. Unusual, but not inexplicable

The issue had been addressed by two appellate courts. One (Fourth Circuit) had ruled for the defendants, one (DC Circuit) for the plaintiffs. The full DC Circuit had agreed to rehear the case so, as a technical matter, there wasn't a split in the circuits. Having a split in the circuits is often an important factor in the SCOTUS deciding whether to take a case, but it's not the only standard. In particular, one of the stated standards for granting cert is "a United States court of appeals has decided an important question of federal law that has not been, but should be, settled by this Court".

If the situation was reversed, I have no doubt we'd all be defending the court for taking the case (it only takes four of the Justices). And if it really was "inexplicable," one or more of the Justices likely would have written a dissent to decision (an unusual move, but one that would be expected with respect to an "inexplicable" decision).