90. Petitions for Rehearing

The aftermath of the Trump immunity case provides a useful foil for one of the nerdier niches of Supreme Court practice, followed by some some (unrelated) thoughts about Saturday’s news

Welcome back to “One First,” a weekly newsletter that aims to make the U.S. Supreme Court more accessible to all of us. 

Every Monday, I’ll be offering an update on goings-on at the Court (“On the Docket”); a longer introduction to some feature of the Court’s history, current work, or key players (“The One First ‘Long Read’”); and some Court-related trivia. If you’re enjoying the newsletter, I hope you’ll consider sharing it (and subscribing if you don’t already): 

There is still quite a bit to say about the Court’s big end-of-term rulings, some of which I plan to cover in this Thursday’s bonus issue. But I thought I’d use questions I’ve received about what happens next with the Trump immunity ruling as a foil for introducing one of the more technical areas of Supreme Court procedure in this week’s issue—petitions for rehearing. As it turns out, the Court grants rehearing with respect to denials of certiorari with at least some frequency, but has not agreed to any rehearing of a ruling in an argued case since 1965—and has not agreed to plenary rehearing since 1956, still the only example in the Court’s history of the justices reversing a merits decision on rehearing. Instead, the principal significance of rehearing petitions with respect to merits rulings today is how they affect the timing of the remand to lower courts—as in the Trump case. 

But first, the news. 

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On the Docket 

Now that the Supreme Court is into its summer recess, there’s a bit less news coming out of One First Street. The only order that came out of the full Court all week was a scheduling order for New York’s response to Missouri’s (preposterous) effort to use the Court’s “original jurisdiction” to halt further proceedings in the New York state criminal fraud case against former President Trump. (New York’s responses are now due July 24.) The only reason why this even merits an order from the full Court is because it’s an original case—so there’s no mechanism for having the circuit justice handle such minutiae. 

The only news we expect from inside the Court this week would be with respect to pending emergency applications. Two, in particular, seem worth mentioning: In Henderson v. Texas, three individuals convicted of “obstructing a passageway” for their role in a protest calling for the removal of a Confederate monument, are asking the Court to put their convictions on hold pending the disposition of a cert. petition—which argues that their convictions violated the First Amendment. Justice Alito had called for a response to the application, which is now in, along with a reply from the defendants. Expect a ruling sometime this week. 

And in Alaksa v. Dep’t of Education, three red states are asking the Supreme Court to put back into effect a Kansas district court’s injunction against the latest student loan repayment program from the Biden administration. The Tenth Circuit had stayed the injunction pending appeal, prompting Alaska, South Carolina, and Texas to ask the justices to put the program back on hold. Justice Gorsuch called for a response to the application by 4 p.m. (ET) on Wednesday, so a ruling by the end of the week is also possible. 

Finally I’d be remiss if I didn’t mention the articles of impeachment introduced last week in the House of Representatives against Justices Thomas and Alito by Representative Alexandria Ocasio-Cortez. I don’t imagine that folks will see eye-to-eye about the merits of the charges outlined in the resolutions. But it strikes me that, in a world in which there’s finite political energy to devote to the Court (even for things that will never happen during this Congress), there are more productive criticisms to level at the Court—and more productive conversations to pursue about how to fix it.

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 The One First “Long Read”: Petitions for Rehearing 

There may be no duller corner of Supreme Court procedure than Rule 44—the rule governing when and how parties can ask the justices to reconsider one of their rulings. It turns out that rehearing petitions on the merits are a virtual dead-letter, and matter more for their timing consequences than anything else. But rehearing petitions at the cert. stage can often be quite significant. 

Let’s start with the latter. Under Rule 44.2, a party whose cert. petition is denied has 25 days within which to ask the Court to reconsider. The rule is explicit that “its grounds shall be limited to intervening circumstances of a substantial or controlling effect or to other substantial grounds not previously presented,” and it requires counsel submitting the petition to certify “that it is restricted to the grounds specified in this paragraph and that it is presented in good faith and not for delay.” In other words, cert.-stage rehearing is almost exclusively for cases in which something has happened after the Court denied certiorari (or, in some cases, right beforehand) that might justify a grant, instead. Rehearing grants in this context are rare, but not unheard of; the last one was in August 2018 (in a case in which I represented the petitioner). In that case, while our cert. petition was pending, a lower court had decided a different issue in a different case in a way that benefitted the petitioner—so we asked the justices for a “GVR” (granting certiorari, vacating the decision below, and remanding for further proceedings) in light of that intervening lower-court ruling.¹

Rehearing of merits decisions, under Rule 44.1, is far rarer. According to the indispensable Supreme Court Practice treatise, the last time the Court granted rehearing after a decision in an argued case was in 1965 (solely to modify the judgment to permit further proceedings in the lower courts on issues the Court hadn’t resolved). And the last time the Court granted rehearing as a precursor to a second round of plenary review was in 1956—when the Court agreed to rehear a constitutional challenge to courts-martial of two civilian spouses of servicemembers stationed in Europe, who had been convicted and sentenced to death for their husbands’ murders. To this day, the decision in Reid v. Covert remains the only time the Court has ever reversed itself on rehearing of a merits decision.

The only recent case to provoke even a public discussion among the justices about whether rehearing should have been granted was in Kennedy v. Louisiana in 2008—where, after the Court held that the Constitution forbids capital punishment for rape of a minor that doesn’t result in the victim’s death, it discovered that its survey of the few jurisdictions to previously allow the practice had excluded the U.S. military. The Court denied Louisiana’s petition for rehearing—and amended its opinion. 

Part of why merits rehearing is so uncommon is because “A petition for rehearing is not subject to oral argument and will not be granted except by a majority of the Court, at the instance of a Justice who concurred in the judgment or decision.” Thus, unlike at the cert. stage, where there are lots of reasons why a justice who voted to deny certiorari might change their mind, there are fewer reasons why a justice who voted one way on the merits might be inclined to change their mind. 

The upshot of all of this is that, despite some degree of public chatter about the specter of a petition for rehearing in the Trump immunity case, it ain’t happening. Even if the Special Counsel sought rehearing (he won’t), and even if Justice Barrett, who was technically in the majority, was inclined to push for rehearing (she wouldn’t be), you’d still need at least one of the other five justices in the majority—because you’d need five votes for a grant. Suffice it to say, I can’t imagine Chief Justice Roberts (who wrote the majority opinion) or any of the four justices who joined it in full having any second thoughts. 

Instead, the real significance of merits-stage petitions for rehearing today is how they affect the timing of remands. Under Rule 45, after the Court has entered a judgment in a case in which it conducted plenary review, the Court either issues a “mandate” (for appeals from state courts) or sends down a “certified copy of the judgment” (for appeals from federal courts) 25 days after the entry of judgment. Why 25 days? Because that’s the period provided by Rule 44 for the filing of petitions for rehearing. So the delay between the entry of judgment and its formal transmission to lower courts is for the sole purpose of allowing the losing party to seek rehearing. Once that window has closed (the Court apparently waits one week to ensure that no petitions were mailed by the deadline), the formal transmission takes place. That’s why the best bet for when the D.C. Circuit will get the Trump case back from the Supreme Court is 32 days after the Court’s July 1 ruling, i.e., Friday, August 2. 

Live and learn! 

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SCOTUS (Not-)Trivia:
Saturday’s News and RFK’s City Club Speech 

As this is a Supreme Court-oriented newsletter, it didn’t seem appropriate to devote an entire issue to Saturday’s news out of Pennsylvania—or what the shooting (and, quite possibly, the attempted assassination) of former President Trump portends for our democratic society going forward. But I also didn’t want to say nothing. So if you’ll forgive me, instead of trivia this week, I thought I’d share one of my favorite speeches—which, coincidentally, was by a presidential candidate reacting to a successful assassination at a time rife with fears of yet-more political (and other) violence: Then-Senator Bobby Kennedy’s speech at the City Club of Cleveland on April 5, 1968, i.e., the day after the assassination of Martin Luther King, Jr., on “the mindless menace of violence”: 

This is a time of shame and sorrow. It is not a day for politics. I have saved this one opportunity to speak briefly to you about this mindless menace of violence in America which again stains our land and every one of our lives. 

It is not the concern of any one race. The victims of the violence are black and white, rich and poor, young and old, famous and unknown. They are, most important of all, human beings whom other human beings loved and needed. No one—no matter where he lives or what he does—can be certain who will suffer from some senseless act of bloodshed. And yet it goes on and on. 

Why? What has violence ever accomplished? What has it ever created? No martyr’s cause has ever been stilled by his assassin’s bullet. 

No wrongs have ever been righted by riots and civil disorders. A sniper is only a coward, not a hero; and an uncontrolled, uncontrollable mob is only the voice of madness, not the voice of the people. 

Whenever any American’s life is taken by another American unnecessarily—whether it is done in the name of the law or in the defiance of law, by one man or a gang, in cold blood or in passion, in an attack of violence or in response to violence—whenever we tear at the fabric of life which another man has painfully and clumsily woven for himself and his children, the whole nation is degraded. 

“Among free men,” said Abraham Lincoln, “there can be no successful appeal from the ballot to the bullet; and those who take such appeal are sure to lose their cause and pay the costs.” 

Yet we seemingly tolerate a rising level of violence that ignores our common humanity and our claims to civilization alike. We calmly accept newspaper reports of civilian slaughter in far off lands. We glorify killing on movie and television screens and call it entertainment. We make it easy for men of all shades of sanity to acquire weapons and ammunition they desire. 

Too often we honor swagger and bluster and the wielders of force; too often we excuse those who are willing to build their own lives on the shattered dreams of others. Some Americans who preach nonviolence abroad fail to practice it here at home. Some who accuse others of inciting riots have by their own conduct invited them. 

Some look for scapegoats, others look for conspiracies, but this much is clear; violence breeds violence, repression brings retaliation, and only a cleaning of our whole society can remove this sickness from our soul. 

For there is another kind of violence, slower but just as deadly, destructive as the shot or the bomb in the night. This is the violence of institutions; indifference and inaction and slow decay. This is the violence that afflicts the poor, that poisons relations between men because their skin has different colors. This is a slow destruction of a child by hunger, and schools without books and homes without heat in the winter. 

This is the breaking of a man’s spirit by denying him the chance to stand as a father and as a man among other men. And this too afflicts us all. I have not come here to propose a set of specific remedies nor is there a single set. For a broad and adequate outline we know what must be done. When you teach a man to hate and fear his brother, when you teach that he is a lesser man because of his color or his beliefs or the policies he pursues, when you teach that those who differ from you threaten your freedom or your job or your family, then you also learn to confront others not as fellow citizens but as enemies—to be met not with cooperation but with conquest, to be subjugated and mastered. 

We learn, at the last, to look at our brothers as aliens, men with whom we share a city, but not a community, men bound to us in common dwelling, but not in common effort. We learn to share only a common fear—only a common desire to retreat from each other—only a common impulse to meet disagreement with force. For all this there are no final answers. 

Yet we know what we must do. It is to achieve true justice among our fellow citizens. The question is now what programs we should seek to enact. The question is whether we can find in our own midst and in our own hearts that leadership of human purpose that will recognize the terrible truths of our existence. 

We must admit the vanity of our false distinctions among men and learn to find our own advancement in the search for the advancement of all. We must admit in ourselves that our own children’s future cannot be built on the misfortunes of others. We must recognize that this short life can neither be ennobled or enriched by hatred or revenge. 

Our lives on this planet are too short and the work to be done too great to let this spirit flourish any longer in our land. Of course we cannot vanish it with a program, nor with a resolution. 

But we can perhaps remember—even if only for a time—that those who live with us are our brothers, that they share with us the same short movement of life, that they seek—as we do—nothing but the chance to live out their lives in purpose and happiness, winning what satisfaction and fulfillment they can. 

Surely this bond of common faith, this bond of common goal, can begin to teach us something. Surely we can learn, at least, to look at those around us as fellow men and surely we can begin to work a little harder to bind up the wounds among us and to become in our hearts brothers and countrymen once again. 

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Regardless, I hope you have a good—and safe—week. 

1. Perhaps the most famous recent grant of rehearing at the certiorari stage was in 2007, when the Court agreed, after initially denying certiorari, to take up Boumediene v. Bush—in which the Court would ultimately hold that the Guantánamo detainees were protected by the Constitution’s Suspension Clause, and the Military Commissions Act of 2006 violated that clause insofar as it took away the federal courts’ power to review the legality of the detainees’ confinement.