5 votes, four in the plurality and one in the dissent

[Mark Tushnet]

In Part IV of his opinion, Souter says that he "join[s] with the 
plurality in ordering remand on terms closest to those I would impose."  
So, on the due process issue, there's a majority holding on what process 
is required.

Michael Froomkin - U.Miami School of Law wrote:

>OK, now imagine you are the district court and apply the same reasoning to
>how much process is due on remand.  Do you take the plurality plus
>Thomas's "no process" to say the plurality commands a majority?  Or do you
>look to the Souter opinion to find a need for more process than the
>plurality requires?
>
>I touched on this problem (too lightly) at
>http://www.discourse.net/archives/2004/06/todays_trifectawhat_does_it_all_mean_pt_i_hamdi.html
>
>On Mon, 28 Jun 2004, Mark Tushnet wrote:
>
>  
>
>>My initial (thoughtless) reaction was that of course you could put 
>>together Thomas and the plurality to get a holding that the Use of Force 
>>resolution satisfied the requirements of 4001(a).  And, on reflection, I 
>>can't see why not:  From a Holmesian, predictive point of view, you want 
>>to know what's going to happen the next time the issue is presented, and 
>>adding up the votes in that way seems to be about as good a predictor as 
>>you could come up with.  (Nor, I think, would a strong "stare decisis" 
>>person who dissented in the first case have to say, "Well, I disagreed 
>>with it then, but the Court held otherwise, and I'm bound by stare 
>>decisis" -- because (obviously) *the Court* didn't hold otherwise.)  Is 
>>there something I'm missing (or, alternatively, why should the phrasing 
>>Eugene quotes be regarded as simply sloppy, or underinclusive because it 
>>didn't take account of this problem?)
>>
>>Volokh, Eugene wrote:
>>
>>    
>>
>>>	As I read the opinions in Padilla, there were five votes -- the
>>>plurality's and Justice Thomas's -- for the proposition that the
>>>Authorization for the Use of Military Force was the sort of
>>>Congressional action that lets the government detain at least some
>>>citizens notwithstanding 18 USC 4001(a).  What's the formal legal rule
>>>as to whether this yields a "holding" by the Court on the question?
>>>
>>>	Lakewood v. Plain Dealer Publishing, 486 U.S. 750, 764 n.9
>>>(1988), says that "when no single rationale commands a majority, 'the
>>>holding of the Court may be viewed as that position taken by those
>>>Members who concurred in the judgmen[t] on the narrowest grounds,'"
>>>citing Marks v. United States.  Does that mean that there is no holding
>>>at all as to 18 USC 4001(a) and the Authorization, since Justice Thomas
>>>was dissenting, rather than concurring?  Are there other precedents that
>>>I'm missing?  I'd love to hear others' views on this.  (I realize that
>>>the legal doctrine may not completely determine -- or perhaps even much
>>>influence -- the practical understanding of this particular case, but
>>>I'd like to know what that doctrine is.)  Thanks in advance,
>>>
>>>	Eugene
>>>_______________________________________________
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>>> 
>>>
>>>      
>>>
>>_______________________________________________
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>>
>>    
>>
>
>  
>
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