the supreme court's sudden decision to reverse its own decision and hear the guantanamo appeals seems to have caused a bit of consternation on the left. with the surpreme court term ending, a time when all the "hard decisions" traditionally come out, there's been a lot of coverage about the court's hard right turn with the addition of roberts and alito.
but what seems to have happened in the gitmo cases has nothing to do with the two new justices. under the supreme court rules, it takes four votes for the court to decide to hear a case. last april, when the appeal was originally rejected, souter, breyer and ginsburg voted to hear the appeal. roberts, scalia, thomas and alito voted against. stevens and kennedy jointed the more conservative justices in voting not to hear the appeal, but explained that they did not think it was appropriate to hear the appeal until the detainees exhausted their appeals with the military commission first. in other words, two of the six votes against hearing the appeal were not voting never to hear the issue. they just didn't think the cases were ripe for supreme court review at that time.
the court rules require five votes to reverse its earlier denial and to hear the appeal. that means at least two justices from the april denial had to change their mind between april and now. it's likely that stevens and kennedy were the vote changers because they were more on the fence (or at least closer to the fence) about hearing the appeal than the four conservatives who voted not to hear the appeal.
in other words, the reversal was probably not driven by the conservative wing of the court. in fact, stevens is one of the more liberal members of the current court. both stevens and kennedy voted with the majority in the hamdan case. indeed, stevens wrote the majority opinion.
