Fwd: Re: rule of four

[Douglas Laycock]

  It was described to me by a law clerk of somewhat more recent
vintage -- 1984 or so.  Assuming his memory was accurate, I think it
is uncodified, like the Rule of Four.

  On a very quick search, I could find no reference to it.  If you
ask Westlaw for "six votes" in the same paragraph as summary or
summarily, the only thing that comes up is the /Dartmouth College/
case.  And they were talking about something else.

  Quoting Janet Alexander <jca at stanford.edu>:

> 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
>

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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