Counting to Five

Here is a link to a terrific post by Tom Goldstein that raises two very interesting points:

1.  The Court could vacate and remand Perry for reconsideration in light of Windsor (the DOMA case).  That would not resolve the standing issue, but would allow the Justices to dodge the issue.

2.  If Justice Kennedy did not vote to grant certiorari, voting to dismiss the writ as improvidently granted could be contrary (at least in spirit) to the rule that you only need four Justices to vote yes on certiorari for the Court to hear the case.

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2 Responses

  1. Bryan Gividen says:

    There’s an interesting division on the underlying theory of the DIG. Justice Stevens is on the record as saying the Rule of Four is completely spent after cert has been granted. So if the Court determines that the case is “an unwise vehicle” to address a legal issue — especially a new constitutional issue — then each member of the Court should be free to vote to DIG. See New York v. Uplinger, 467 U.S. 246, 250 (Stevens, J., concurring). Uplinger was itself a case where the Court digged on a 5-4 vote; presumably those four votes should have been sufficient to compel a decision, but that wasn’t enough for Stevens.

    Like you note, some do think that there is or ought to be a “Rule of Five” to vote or at least a rule that requires one of the Justices who voted to grant to switch their votes. See, e.g., United States v. Shannon, 342 U.S. 288, 298 (1952) (Douglas, J., dissenting).

  2. Joe says:

    I like Frankfurter:

    “After the argument of these cases, it became manifest that they were legal sports.”

    Heck, it was manifest this was something of a legal sport beforehand but Stevens’ position at any rate to my uneducated eye seems logical. Be interesting to know what justices wanted this case (Uplinger suggests a comparable situation) but anyway, this specific matter has been truly convoluted for years now. Why end now?