But why would the Court even ask for briefs on the issue if most of the justices weren’t considering overruling it? It’d be an odd thing to do if only three votes were there. The Court may ultimately decide not to overrule it, that’s true, but what makes you think Scalia and Thomas are in favor of Jackson? I wasn’t surprised by their votes in the recent auto search case, but this is quite different.
At least four justices agree to hear the case and there has been a bit of controversy about Jackson. Because at least four justices agreed to hear the case there is a strong that the defendant in the case will have his conviction reversed which would lead me to think the court will come out in support of Jackson.
Calling for briefs will help the court look at outside views of Jackson. Having read all the briefs in the case. the arguments for upholding Jackson are much stronger than the couple supporting the overturning of Jackson.
I believe the members of the court will see, if they already don’t, that reversing Jackson will create a nightmare in the courts and a great deal of future difficult cases that will overload the courts even more than they already are.