Just a thought on the supposed congeniality of the "new" court: In Justice Breyer's dissent, he questions the logic of the majority opinion and refers to the majority, not as "the majority" or as "the Court," but instead, singles out the author---Justice Scalia---for its faults. On page 25 of the dissent, Breyer writes "How can Justice Scalia maintain that the evidence here---a gun and drugs seized in the home---is not the fruit of the illegal entry."
I would speculate that until Justice Alito joined the court and made his intentions clear regarding this case, following re-argument, the decision was 5-4 the other way with Justice Breyer writing for the court and Justice Scalia writing the dissent. Following the switch, the two opinions changed places, and Breyer's law clerk may simply have neglected to make this one change, which would be far more in line with protocol were it contained in the opinion of the court, which often refers to dissenters by name.
Interesting data point.
