Judicial Conventions: An Examination of the U.S. Supreme Court's Rule of Four
38 Dublin University Law Journal 477 (2015)
13 Pages Posted: 21 Jun 2015 Last revised: 24 Dec 2015
Date Written: April 4, 2015
Scholarly writings on “constitutional conventions” have, for the most part, focused on extra-judicial conventions — i.e., conventions of the executive and legislative branches of government. This academic reality begs the question of whether judicial conventions can qualify as constitutional conventions and, if so, whether they are worthy of constitutional study. This Comment seeks to answer these questions by analyzing a specific judicial convention: the U.S. Supreme Court’s adherence to the Rule of Four, an informal and unwritten rule that the Court will hear a case when at least four of the nine Justices vote to do so.
The conclusion reached herein is that the Court's adherence to the Rule of Four qualifies as a convention under Sir Ivor Jennings’ three-part test because (1) it is a practice based on precedents, (2) the actors in the precedents believed that they were bound by a rule, and (3) there are reasons for the rule. Additionally, because the Rule of Four regulates the manner in which constitutional power is exercised, the Court's adherence to the Rule of Four is a convention deserving of the “constitutional” label.
Moreover, the Court's adherence to the Rule of Four is worthy of constitutional study. This conclusion is based on the rule’s potential to impact the meaning of the U.S. Constitution. Because the Rule of Four constitutes the basis for a judicial convention in a country governed by a legal constitution — the meaning of which is determined by a supreme court instead of a supreme legislature — the rule can have a real effect on the meaning of the U.S. Constitution and the pace of constitutional change.
Keywords: Rule of Four, conventions, U.S. Supreme Court, legal constitution, constitutional change
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