That dang Court ain't stacked enough yet, Mr Bush

As a non-lawyer, reading a dense judgement riven with partial joinings and multiple dissents such as this week's 185 page Hamdan versus Rumsfeld from the United States Supreme Court, it is difficult to make sense of the legal appropriateness of the 5-3 decision, with Justice Kennedy siding with the majority and Chief Justice Roberts abstaining due to involvement in previous Court of Appeals proceedings. I can only go with my gut instinct which is to agree with Justice Breyer's comments:

Congress has not issued the Executive a “blank check.” [...] Indeed, Congress has denied the President the legislative authority to create military commissions of the kind at issue here. Nothing prevents the President from returning to Congress to seek the authority he believes necessary.

Where, as here, no emergency prevents consultation with Congress, judicial insistence upon that consultation does not weaken our Nation’s ability to deal with danger. To the contrary, that insistence strengthens the Nation’s ability to determine—through democratic means—how best to do so. The Constitution places its faith in those democratic means. Our Court today simply does the same.

The New York Times (free rego required) writes on the most recent session, noting that it is may be more accurate to call this session the "Kennedy Court", given that Justice's likelihood of being in the majority in close votes but not exclusively to the left or right - denying the "blank check" conservatives hoped from the appointments of Roberts and Alito. Future decisions will be closer still as the conflicts from Appeals Courts which required the recusals of Alito or Roberts are dealt with or are refused a hearing.