Whatever happened to the rule of 3?

[Pam Karlan]

At 02:14 PM 6/7/2004 -0700, Eastman, John wrote:
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>An interesting cert denial today in the Colorado reapportionment 
>case.  The Chief, joined by Justices Scalia and Thomas, dissented from the 
>denial of cert.  If I recall correctly, Justices Kennedy and O Connor (and 
>others) are big proponents of the Rule of 3.  IS the rule dead?
>

The "rule of 3" -- or at least the version I know anything about -- allowed 
three justices to "hold" a case pending the outcome of another case.  E.g., 
a week after the Court decided Tennessee v. Lane, it GVR'd (granted, 
vacated, and remanded) a case called Columbia River Correctional Fac. v. 
Phiffer in light of Lane.  Looking at the docket sheet in Phiffer, it's 
pretty clear that the case was held for Lane.

There's nothing pending right now off of which Salazar clearly should be 
held.  It's conceivable, of course, that if the Court notes in the Texas 
re-redistricting cases, a subsequent decision might have had some bearing 
on Salazer, but it's neither certain the Court will note there nor that the 
legal issues are sufficiently similar to warrant a hold.

The other 3 justice practice of which I'm aware is "join 3," which was a 
recommendation some justices' clerks used to make about certs -- i.e., "if 
there are three other justices who want to take this case, you ought to 
vote with them."


Pamela S. Karlan
Kenneth and Harle Montgomery Professor of Public Interest Law
Stanford Law School
559 Nathan Abbott Way
Stanford, CA 94305-8610
karlan at stanford.edu
650.725.4851
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