I just had a chance to read the Supreme Court’s decision in Ayotte. My take is that the justices resolved the case as they did to delay a final decision until after Justice O’Connor’s replacement was confirmed. A remand for a different remedy still leaves open the possibility that there is no underlying constitutional violation. That, however, would be a split decision and likely close, and therefore it was more prudent to wait until the composition of the court was set. I do, however, think that a majority of the court would say that there is a violation and that the remedy is limited to striking only that portion that is unconstitutional. I think the Supreme Court also resolved Ayotte as it did to give the government a hint on the federal partial-birth abortion ban. And I predict the 9th Circuit’s ruling today, striking the entire ban will be remanded on the same grounds.

Finally, on a different Supreme Court note: After the Roberts and Alito proceedings, it is now clear to me that there are few attorneys who could possibly pass the constitutional examination nominees confront. And the best approach, as Feddie pointed out, is the most highly qualified originalist.