Skip to comments.Brett Kavanaugh and the ‘rule of four’
Posted on 07/12/2018 3:36:51 AM PDT by UnwashedPeasant
The modern confirmation process for the Supreme Court is full of rules: the Ginsburg Rule, the Biden Rule, the Reid Rule and the McConnell Rule. Often their definitions and their relevance are hotly contested. What isnt contested is that the court itself has a widely recognized and easily understood rule: the rule of four. That rule is key to understanding the full impact of confirming Judge Brett M. Kavanaugh to the court.
The rule of four holds that for the court to grant certiorari to hear and decide a case, four of its members must vote to do so. This is a crucial hurdle for the 7,000 to 8,000 or so petitions for certiorari requests to be heard filed with the high court each year. Of those thousands, about 50 will be accepted and decided quickly and another 60 to 80 will move to oral arguments. The rest, unable to obtain four votes, are simply turned away.
We dont know how often Chief Justice John G. Roberts Jr. has withheld a vote to grant cert in the 13 years he has held the job, leaving his three generally more conservative colleagues without the necessary fourth vote, because the chief justice worried about either his own or Justice Anthony M. Kennedys vote going the wrong way when it came to the merits. How often did discretion rule when the chiefs vote was cast not to hear a case?
Roberts (like me) was in the Reagan-era Justice Department when then-Solicitor General Rex Lee (the father of current Utah Sen. Mike Lee) would begin his monthly briefings to the attorney general and Justice Department staff by reminding everyone that he didnt want to bring cases for which there was no path to five votes for the governments position.
(Excerpt) Read more at washingtonpost.com ...
Several good points in this article. Especially the one about not pushing cases that you can’t win. Good facts make good law. Bad facts make bad law.
Ive learned a similar saw ...
Better to endure a bad individual outcome in a case than to appeal it and force the court to establish a bad rule (affecting all similar cases in the future).
We dont know how often Chief Justice John G. Roberts Jr. has withheld a vote to grant cert in the 13 years he has held the job, leaving his three generally more conservative colleagues without the necessary fourth vote, because the chief justice worried about either his own or Justice Anthony M. Kennedys vote going the wrong way when it came to the merits. How often did discretion rule when the chiefs vote was cast not to hear a case
So as we have known they are not neutral.
So they tend to rule on what they think is best for them and not what the constitution says.
Exactly right. They do not know what the hell their job is. Is it covered in the text of the Constitution or not. End of case. They are and always be the super legislative branch and the people of the US (most anyway) do not care.
Hugh Hewitt, Washington Post...
Yikes, something I can agree with...
Remember way back during the primaries Hugh Hewitt asked Trump some stupid question and included something like ‘as I pointed out on my radio show’, and as part of his answer Trump said ‘good thing not many people listen to your show’?
Hewitt has one of those faces you just want to punch.
Generally speaking, after listening to him for thirty minutes, I would concur.
Not exactly. What the author is saying is that when reviewing which cases to take, there have currently been 3 votes on one side and 3 on the other. Whomever casts the 4th vote means they want to review the case and clarify the law, but they are afraid to be the 4th vote when they know they are not likely win 5 votes after the review.
The implication is, of course, that with 5 or 6 votes more certain to be decided in the way the 4th vote goes the court will begin hearing a lot more important cases - hopefully that would mean more Constitutionally justified, freedom inspired rulings from the court. Instead, many of these cases are not heard for fear that the 4th vote will be overruled by the other 5.
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