Document Type

Article

Publication Title

University of Pennsylvania Law Review

Abstract

This Article examines disputes over two important internal procedures: the "Rule of Four," which governs the Court's selection for plenary review of cases on its discretionary docket; and the "hold" rule, or "Rule of Three," which postpones decisions on petitions for certiorari or jurisdictional statements pending disposition of a case already given plenary review. While the existence of the Rule of Four has been known publicly at least since 1925 and the Justices have frequently debated its scope, the hold rule was not explicitly discussed by the Court until the 1985 Term, and it was not until the 1986 Term that the Court indicated that that rule was in fact a Rule of Three. Both the Rule of Four and the hold rule are nonmajority rules: they can be invoked by fewer than half the Justices. At the same time, however, they set in motion a process whose outcome-a decision on the merits-is ultimately decided by majority vote. This Article looks at what happens when a minority's invocation of these rules conflicts with the contrary desire of a majority of the Court. The reasons for examining these conflicts are, first, to see whether a coherent view of the rules' boundaries emerges and, second, to determine the purpose, if any, of their nonmajority nature. This Article suggests how different visions of the role of the Court lead to different resolutions of the conflicts between the majority and a minority, and to different explanations as to why a majority vote is not required. Two important conclusions emerge from this inquiry. First, the Court's operating rules have a significant impact on the Court's substantive decisions and on the behavior of various actors in our legal system. They affect, for example, the stability of precedent, the scope of retroactivity of substantive decisions, and the incentives faced by litigants. Second, the Justices' views on the scope of these rules exhibit a remarkable degree of inconsistency and incoherence. Their disregard for these essential attributes of adjudication, albeit in a procedural context, raises serious questions about their respect for substantive legal doctrines.

First Page

1067

DOI

https://doi.org/10.2307/3312160

Volume

136

Publication Date

1988

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