Prediction and the Rule of Law

Abstract

The United States Supreme Court Rules provide that the Court will only grant a petition for rehearing on a previously denied petition for writ of certiorari if the petitioner can show that a substantial change in circumstances justifying review has occurred since the denial of certiorari. Shortly after Clarence Thomas was confirmed as an Associate Justice, the Court received several pro se petitions for rehearing containing an interesting argument. According to these petitions, Justice Thomas' confirmation was a substantial change within the meaning of the Rule.

Not surprisingly, the argument did not find favor with the Justices. To grant a rehearing petition solely on the basis of a new Justice's appointment would appear curious, even unseemly. It would announce that the individual predilections and preferences of the human beings who serve as Justices make a difference in the outcome of litigation, thereby undermining the rule of law. Hence, new Justices typically do not even vote on petitions for rehearing based on a petition originally filed before the new Justice's joining the Court.

Keywords: United States Supreme Court, petition, rehearing, change in circumstance, Justices, predict, Clarence Thomas, certiorari