The first per curium opinion of the Term came out today, an 8-1 reversal on a qualified immunity ruling involving a police officer. This leads me to ask the following question: What is the Court’s internal norm on what is required to set a case for oral argument?
If the Justices unanimously think that they should engage in error correction, I can see why they would do so without the full range of briefing and argument. If they are not unanimous, though, then why wouldn’t the dissenters ask that the case be set for argument? And is that a decision that occurs via a majority vote, a “rule of four” as with certiorari, or the desire of just one Justice?
Perhaps the answer is that when a case involves error correction the Justices have a tacit agreement that nobody will ask for argument. (Why they are engaged in error correction at all is another matter.) But what if somebody does not agree that the case is an example of error correction? Moreover, calling for argument internally could result in a denial of certiorari if the other Justices thought that the case did not deserve maximum attention, and that might be a goal of the dissenter.