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