Effect of denial of rehearing.

• Jurisdiction: United States

Section 150. Effect of denial of rehearing.—The old saw, that it is better to have loved and lost than never to have loved at all, should not be applied to petitions for rehearing. A "rehearing denied" will frequently weaken a good point when that point later becomes critical.

First, no matter how strong a point may be, it will be far weaker if presented in the last of a long series of requests for reconsideration, because by then the usual judicial attitude recalls General Forrest's turn-down of the lieutenant's renewed application for leave: "Dammit, I told you 'No' twicet!" And, lest any reader deem that comment overly cynical, let him look at the Rosenberg case.⁶³

There, after six consecutive applications for review had been denied, it was finally contended, on a seventh, that, since the petitioners had been found guilty of a conspiracy alleged in the indictment to have continued from 1944 to 1950, they were not properly sentenced to death by the judge under the Espionage Act of 1917, but could only have been so sentenced upon recommendation of the jury pursuant to the Atomic Energy Act of 1946. Now, whether or not that contention was correct, it would be hard to urge that as an original proposition it was unsubstantial.⁶⁴ But it was not presented as an original proposition, it was first presented as a renewed, warmed-over, and hence apparently unoriginal seventh proposition, and under unusual circumstances that would have entailed substantial delay in the final disposition of the case.⁶⁵ In one of the opinions it was said that "The stay which had been issued promised many more months of litigation in a case which had otherwise run its full course."⁶⁶ In another it was said:

Once the Court conceded, as it did, that the substantiality of the question raised before Mr. Justice Douglas was the sole issue, it became wholly immaterial...