Justice by the Numbers: The Supreme Court and the Rule of Four - or is it Five?

Abstract

This article discusses the history of the Supreme Court's unpublished internal rules; examines how ambiguity and inconsistent application of these rules leave attorneys, petitioners, and observers confounded; and recommends an end to the era of procedural postulating. For too long, the Supreme Court has followed rules that either are not stipulated by Congress or are not clarified by the Court. Moreover, the Court has adhered to these written but unpublished rules with varying levels of commitment. This article focuses on how the internal rules are applied to various types of cases presented for review - particularly in the context of habeas corpus and the death penalty - and the effect that these rules have on the outcome of the cases the Court accepts.

Keywords: Supreme Court, Supreme Court Internal Rules, Internal Rules, Procedural Rules, Robert Lee Tarver, In Re Tarver, Habeas Corpus, Death Penalty, Certioriari, Stay of Execution

JEL Classification: K14, K40, K41