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The California Prison Case

On the Supreme Court's orders list for today is this order in Schwarzenegger v. Plata, No. 09-1233:

Further consideration of the question of jurisdiction is postponed to the hearing of the case on the merits.

Lyle Denniston at SCOTUSblog interprets this order as meaning that "the first issue up for review is whether a three-judge U.S. District Court had the authority even to issue an inmate release order."

I do not agree.
[Update: Lyle has revised his post.] I think the jurisdictional question that the Court deferred is whether the Supreme Court has jurisdiction to review the order of a single-judge district court calling for the three-judge court to be convened. The Governator tried to appeal that order to the Ninth Circuit when it was issued, and the prisoners moved to dismiss on the ground the Ninth did not have jurisdiction.  The Ninth's docket in case 07-16361 says (emphasis added):

Order filed: The motions to exceed the page limit for aples' opposition and aplts' reply are granted. Aples' opposed motion to dismiss these appeals for lack of jurisdiction is granted....CITE. The district court orders from which aplts seek to appeal can be effectively reviewed following the entry of a final order by the three−judge district court. All other pending motions are denied as moot. DISMISSED.

The appeal referred to in the italicized language is the appeal now before the Supreme Court. In other words, the Ninth Circuit ruled that the Supreme Court would have jurisdiction on the motion of the very people now denying the Court has jurisdiction.

Counsel for appellees win the chutzpah award of the week.

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