Parties Press SCOTUS Rehearings

SCOTUS Rehearings

You’ve heard it before, but here it is again: The chances of getting a case heard by the U.S. Supreme Court are pretty slim.

Of the approximately 10,000 petitions for certiorari filed with the court each term, the justices agree to hear about 70.

The grant rate for petitions for rehearing are similarly abysmal. Such petitions can be filed after the court refuses to review a case or after it has decided a case on the merits.

“During the 2006–2010 Terms, a total of 3,532 rehearing petitions were filed,” a leading Supreme Court treatise, Stephen M. Shapiro et al., Supreme Court Practice §15.I.5 (10th ed. 2013), says.

“The Court granted only three, two of them in cases that were consolidated,” the treatise said, citing Boumediene v. Bush, 551 U.S. 1160 (2007) and Al Odah v. United States, 551 U.S. 1160 (2007).

The last time the court granted a petition for rehearing was in 2012.

In Liberty Univ. v. Geithner, No. 11-438, the court GVGVR’ed the case… *rolls eyes* you know, granted the petition for rehearing, vacated it’s previous order denying certiorari, granted the petition for certiorari, vacated the judgment below and remanded in light of National Federation of Independent Business v. Sebelius.

Still, “rehearing petitions have been granted in the past where the prior decision was by an equally divided Court and it appeared likely that upon reargument a majority one way or the other might be mustered,” Supreme Court Practice says.

It adds that those cases “probably amount[] to the largest class of cases in which a petition for rehearing after decision on the merits has any chance of success,” Supreme Court Practice says.

Ok, that doesn’t sound all that encouraging. But the lack of a ninth justice increases the odds that there will be 4-4 decisions, and could make rehearing grants more likely.

Parties in two cases decided by a 4-4 split this term are hoping to take advantage of those slightly better odds.

On May 19, the Supreme Court will consider rehearing petition in Hawkins v. Community Bank of Raymore, No. 14-520.

The court was set to consider the rehearing petition in Friedrichs v. California Teachers Association, No. 14-915, too, but it was rescheduled for a third time.

In both cases, the justices couldn’t come to an agreement on the outcome after oral argument, splitting 4-4. That affirmed the decision below, but isn’t binding on other courts.

As a result, in Friedrichs the evenly divided court left undisturbed a decades-old ruling allowing public unions to charge fees to non-union members for collective bargaining activities. In Hawkins, the court left in place a circuit split over marital status discrimination under the Equal Credit Opportunity Act.

The court will likely call for a response first if it grants the rehearing petition.

Supreme Court Rule 44.3 prohibits the filing of responses unless one is requested by the court. It goes on to say that, in “the absence of extraordinary circumstances, the Court will not grant a petition for rehearing without first requesting a response."

That request for a response would appear in the court’s regularly scheduled order list, which comes out most Mondays (for the rest of the term, the blue days on this calendar) at 9:30.

Such an order would be the first indication these cases are bucking the odds for an elusive rehearing grant.

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