The Gag Rule of Five?


There’s an uncodified but perpetually followed rule that it takes four Supreme Court justices to grant a petition for certiorari—meaning that the Supreme Court will review a particular case.

But a petitioner has to convince more justices—specifically five—if they want to get a stay.

This couldlead to the macabre situation where the justices agree to review a death row inmate’s case, but don't get to before the inmate is executed and the court is deprived of jurisdiction.

To avoid this moot-by-death situation, there is the so-called courtesy fifth vote: whenever there are four votes to hear a death row inmate’s appeal, one justice will step in to provide a courtesy fifth vote to stay the execution.

And while the Chief Justice appeared to endorse this practice during his confirmation hearings, a puzzling situation earlier this week has caused court watchers to scratch their heads.

The court denied the application to stay the execution of a Missouri inmate, and also denied his petition for certiorari before judgment.

The curious part: four justices noted that they would have granted the stay, yet none indicated that they would have granted cert.

So because there weren't four votes to grant cert, the courtesy rule of 5 wasn't technically broken.

But that means that while the dissenting justices would have granted a stay, they wouldn't have granted review.

What would lead a justice to want to stay an execution without wanting to review the case itself?

Like so many important Supreme Court “decisions” lately—including in same-sex marriage, voting laws, and abortion—we may never know.

That’s because the court typically does not explain itself in these kinds of orders.

So while Chief Justice Roberts has called the Supreme Court “the most transparent branch of government,” one wonders if that’s really an apt description.

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