When is Finality . . . Final? Rehearing and Resurrection in the Supreme Court

Abstract

Litigation must at some point come to an end. The Supreme Court’s denial of a petition for certiorari usually marks a case’s end. Yet occasionally the Court will grant a reprieve in the form of rehearing. This article discusses both theoretical and practical questions raised by the Supreme Court’s power to grant rehearing after a denial of certiorari. On the theoretical side, the Court’s rehearing practices are interesting and important because they involve a delicate balance of several procedural values surrounding finality; in addition, the Court’s practices illustrate the underappreciated role of discretionary case-handling decisions in fixing the critical date on which a case becomes final. On the practical side, attorneys would do well to understand the Court’s rehearing procedure and, in particular, to appreciate the category of cases in which seeking rehearing is a realistic prospect rather than a futile gesture. An appendix collects data on grants of rehearing after the denial of certiorari, one lesson of which is that the Court does it more often than you might think.

Keywords: Supreme Court, finality, rehearing, certiorari, GVR