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What Are “The Rule of Four” and a “Writ of Certiorari”

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Over the past century, the Supreme Court has gained virtually complete control over its own agenda

Once a relatively passive institution which heard all appeals that Congress authorized, the Court is now a virtually autonomous decisionmaker with respect to the nature and extent of its own workload.

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The Supreme Court receives about 10,000 petitions a year. The Justices use the "Rule of Four” to decide if they will take the case. If four of the nine Justices feel the case has value, they will issue a writ of certiorari. This is a legal order from the high court for the lower court to send the records of the case to them for review. When all is said and done the Supreme Court will hear about 75-85 cases a year. This tells us that most petitions are denied. The majority of the Supreme Court’s cases today are heard on appeal from the lower courts. These cases usually come from the federal courts of appeal, but the Court does sometimes hear appeals from the state Supreme Courts as well. The Justices of the Supreme Court are most likely to take cases that will affect the entire country, not just the individuals involved. They want to clarify legal issues that are important to as many people as possible, so they take cases that will have a large constitutional impact, or that answer important legal questions that affect the whole nation. Justices will also take a case when the lower courts cannot agree on how to interpret the law involved, or in which different lower courts have interpreted the law differently. When the lower courts decide cases differently, it can lead to confusion.

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Much attention has been accorded status quo preserving powers of minority coalitions, such as the Senate filibuster, (Binder and Smith, 1997; Krehbiel, 1998), and the presidential veto (Cameron, 2000), however, little work to date has analyzed the one example of positive minority power found in the American governmental system—the Rule of 4 on the United States Supreme Court. Under this “rule,”a minority of justices can control which cases end up on the Court’s agenda for the term because it takes four votes rather than five (a minimum winning majority coalition) to place a case on the plenary docket

We contend that the Rule of 4 is unique because it allows a minority of justices to both set the agenda of the Supreme Court and to force a change to the status quo rather than simply preserving it. This is a unique power for a minority of justices because it acts as a sharp constraint on majority tyranny at the Court’s agenda setting stage. Kurland and Hutchinson (1983, 645) put it succinctly, “The rule of four is a device which a minority of the Court can impose on the majority a question that the majority does not think it appropriate to address.” The potency of this rule is not lost on the justices.

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Briefly, in an effort to promote collegiality on the Court, justices are responsive to the ideology of the median justice on the Court. It is clear that justices are strategic actors and strategic behavior is especially important in the certiorari stage. This research is important in showing that justices do not engage strictly in sincere behavior and that there are both institutional and external factors important to a justice when he or she is deciding to grant or deny certiorari.

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Binder, Sarah A., and Steven S. Smith. 1997. Politics or Principle?: Filibustering in the United States Senate. Washington, D.C.: Brookings Institution Press.

Brenner, Saul, and John F. Krol. 1989. “Strategies in Certiorari Voting on the United States Supreme Court.” Journal of Politics 51(4):828–840.

Kurland, Philip B., and Dennis J. Hutchinson. 1983. “The Business of the Supreme Court, O.T. 1982.” University of Chicago Law Review 50:628–651.

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