Fwd: Re: rule of four

[Janet Alexander]

Could anyone clarify on the rule of 6 Doug mentions?  As I recall, when I 
clerked in 1979 Term it only took 5, like any other decision.  But I could 
be wrong.
         Janet Alexander

At 12:03 PM 9/25/2006 -0400, Douglas Laycock wrote:

>Thanks to Ed Hartnett for an explanation with more authority.
>
>One clarification of my short version:  it takes at least 5 to do anything 
>other than grant cert; the rule of 4 is an exception to the usual 
>requirement of a majority.  But it is not quite accurate to say it takes 5 
>to do "anything else."  My understanding is that it takes 6 to summarily 
>affirm or reverse without full briefing and oral argument.
>
>
>----- Forwarded message from laycockd at umich.edu -----
>     Date: Mon, 25 Sep 2006 11:30:44 -0400
>     From: Douglas Laycock <laycockd at umich.edu>
>Reply-To: Douglas Laycock <laycockd at umich.edu>
>Subject: Re: rule of four
>       To: conlawprof at lists.ucla.edu
>
>
>
>   It takes four to grant, but five to do anything else.  There was an
>innocence claim back in the 90s where they granted cert but denied a
>stay, and the case was mooted when the petitioner was executed.  They
>took a lot of PR flack over that.
>
>   I read the other day that Justice O'Connor would often provide a
>fifth vote for a stay when four others voted to grant cert.  That
>practice may have left the Court with her.
>
>   Quoting Malla Pollack <mpollack at ajsl.us>:
>
> > On Sept 20th, the Supreme Court rejected a request for a stay of
> > execution by Hill (Hill v McDonough, 06-545).  The order said that
>four
> > Justices (Stevens, Souter, Ginsburg, and Breyer) would have granted
>the
> > stay.  I was under the impression that the rule of four included
>stays
> > needed to prevent a cert petition from becoming moot.  Was I wrong
>or is
> > this a change in procedure?
> >
> >
> >
> > Malla Pollack
> >
> > Professor, American Justice School of Law
> >
> > mpollack at ajsl.us
> >
> > 270-744-3300 x 28
> >
> >
> >
> >
>
>Douglas Laycock
>Yale Kamisar Collegiate Professor of Law
>University of Michigan Law School
>625 S. State St.
>Ann Arbor, MI  48109-1215
>   734-647-9713
>
>
>----- End forwarded message -----
>
>Douglas Laycock
>Yale Kamisar Collegiate Professor of Law
>University of Michigan Law School
>625 S. State St.
>Ann Arbor, MI  48109-1215
>   734-647-9713
>
>It takes four to grant, but five to do anything else.  There was an 
>innocence claim back in the 90s where they granted cert but denied a stay, 
>and the case was mooted when the petitioner was executed.  They took a lot 
>of PR flack over that.
>
>I read the other day that Justice O'Connor would often provide a fifth 
>vote for a stay when four others voted to grant cert.  That practice may 
>have left the Court with her.
>
>Quoting Malla Pollack <mpollack at ajsl.us>:
>
> > On Sept 20th, the Supreme Court rejected a request for a stay of
> > execution by Hill (Hill v McDonough, 06-545).  The order said that four
> > Justices (Stevens, Souter, Ginsburg, and Breyer) would have granted the
> > stay.  I was under the impression that the rule of four included stays
> > needed to prevent a cert petition from becoming moot.  Was I wrong or is
> > this a change in procedure?
> >
> >
> >
> > Malla Pollack
> >
> > Professor, American Justice School of Law
> >
> > mpollack at ajsl.us
> >
> > 270-744-3300 x 28
> >
> >
> >
> >
>
>
>Douglas Laycock
>Yale Kamisar Collegiate Professor of Law
>University of Michigan Law School
>625 S. State St.
>Ann Arbor, MI  48109-1215
>   734-647-9713
>_______________________________________________
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Janet Cooper Alexander
Frederick I. Richman Professor of Law
Stanford Law School
Stanford CA 94301-8610
650.723.2892
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