Fwd: Re: rule of four

Tue Sep 26 04:13:29 PDT 2006

On the "rule" of 6:  It was in place, as a general practice, in 1972-73.
There was a minor flap when Ortwein v. Schwab was decided as a summary
reversal by a vote of five-to-four, after United States v. Kras had been
decided (Ortwein had been held for Kras, I'm pretty sure).  I've tried to
pay attention to summary decisions since then, and I'd be surprised if there
were more than a handful (literally, more than five) decided by 5-4 votes
over the past thirty years.

Mark Tushnet

William Nelson Cromwell Professor of Law

Harvard Law School

Areeda 223

Cambridge, MA  02138

ph:  617-496-4451 (office); 202-291-6352 (home); 202-374-9571 (mobile);
617-496-4866 (fax)

  _____  

From: conlawprof-bounces at lists.ucla.edu
[mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of Janet Alexander
Sent: Monday, September 25, 2006 1:50 PM
To: Douglas Laycock; conlawprof at lists.ucla.edu
Subject: Re: Fwd: Re: rule of four

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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