The jurisdictional argument was a significant part of CJLF's brief. We argued that the whole case is indeed before the Court, so it is encouraging that this point appears to be accepted.
Both the Court and the two lawyers who argued were so locked into a review of the details of the actual release order issued by a three-judge District Court in the case that no one spent even a second of the lengthy hearing discussing procedural complications that might have kept the Justices from ever ruling on the validity of that order. It appeared that the Court had silently accepted the notion that the entire case, with some parts of it stretching back 20 years, was before it for a definitive ruling.
The focus of attention shifted fully to Justice Kennedy, as the other Justices appeared very closely divided as they made clear where they stood for or against what the District Court had done in ordering that upwards of 35,000 inmates be turned loose in California over the next two years. And, if what Kennedy said controls how he would be voting on the final outcome, it seemed that he would not be willing to overturn that release order in its entirety, but would find ways to indicate that the remedy had to be reshaped or pared down in its scope.
Update: The transcript is here.
After reading the transcript, I think Lyle has it pretty much right. Justice Kennedy seems appropriately skeptical of the three-judge court's choice of a number for prison population reduction. Given the burden of proof, if there is a range of uncertainty, they should be picking the less-intrusive end of the range. Justice Alito was appropriately skeptical of the claim that a reduction of this magnitude can be achieved without danger to public safety, but it doesn't look like he is in the majority on that.
Anything short of an outright affirmance means there will be a remand. I hope the Court will take up CJLF's suggestion of reassignment to a new panel, although that point was not mentioned in the oral argument.
Greg Stohr has this report for Bloomberg.