When is finality ... final? Rehearing and resurrection in the Supreme Court.

• Author: Bruhl, Aaron-Andrew P.

1. INTRODUCTION

   It ain't over till it's over.

   And yet the question remains: When, exactly, is it over? Perhaps the safest answer, when it comes to litigation, is that it is never over, at least if we mean absolutely and irretrievably over. (1) Nonetheless, while recognizing that absolute repose might not be found in this world, we often say that a case is over once the judgment becomes "final." Now, finality is a word of many meanings, so one has to be careful in using it. (2) The particular type of finality that concerns us here is the finality that attaches when the direct appellate process has run its course. This type of finality is important because it marks the point at which a case outcome is no longer routinely subject to revision based on changes in the governing law. A case that is still on appeal is not yet final in this sense, and so an appellate court can reverse a trial court decision that was perfectly correct when rendered but that has become incorrect by the time of the appeal. (3) After finality attaches, however, the judgment stands even if the law later changes. To be sure, this is not an absolute and iron-clad rule; few things in the law (or in life) are. But, at the very least, the attachment of finality at the end of the appellate process marks a key turning point.

   Because finality has important consequences, the precise moment that a case becomes final can matter a great deal. As just stated, finality attaches when the direct appeal concludes. But that is still inexact. To express it more precisely, a case becomes final, for federal-law purposes, when the date for petitioning for certiorari expires or, if a petition is filed, when the Supreme Court denies it. (4) The denial of certiorari is therefore a decisive event, inasmuch as it marks the boundary between the still-pending and the now-final, the live and the dead.

   Given that it is simply the day certiorari was denied (or the day the period for seeking certiorari expired), identifying the moment of finality is ordinarily very easy and, seemingly, not the sort of thing that would reward much study. But that initial impression would be wrong, for there are some interesting issues that lurk just below the surface. First, note that the Supreme Court's case-handling practices introduce some discretion into the date of finality. When the Court has granted certiorari to rule on a particular question, the Court could just deny any other petitions for certiorari that raise the same or similar issues. That would render those cases final and presumptively not eligible for the application of the rule the Court is poised to announce. But the Court's usual practice is not to deny all similar petitions but instead to hold them on its docket until the plenary decision comes down. Once the decision is announced, the Court will then summarily vacate the potentially affected cases and remand them so that the lower courts can apply the new law and make any appropriate modifications. To those conversant in the details of the Court's practices, this is called a GVR (for grant, vacate, and remand). (5) In this way, the Court controls whether cases live or die by controlling the date on which it rules on the petition for certiorari. Cases do not progress to finality as if on an unstoppable conveyor belt. Just as impersonal chance and dumb luck play a role in a particular case's track toward finality, so does judicial choice.

   A second interesting feature of finality in the Supreme Court--and another point of entry for judicial discretion--is that a denial of certiorari might itself turn out not to be truly final. That is because the Court's rules allow a disappointed litigant to file a petition for rehearing of the denial of certiorari. (6) Many litigants file petitions for rehearing, and it is usually a futile gesture. (7) But it sometimes bears fruit. Perhaps the most notable recent grant of rehearing was the Court's decision, in June 2007, to grant certiorari on rehearing in two Guantanamo detainee cases after the Court had denied certiorari a few months before. (8) The Court granted certiorari in order to give the cases plenary consideration, and, after briefing and oral argument, the cases led to the landmark opinion known as Boumediene v. Bush. (9)

   This Article concerns instances in which the Court grants rehearing not in order to give a case plenary review but instead in order to summarily remand for consideration of a new development. This is not an everyday occurrence either, but it happens more than most observers probably realize. Indeed, in 2005 the Supreme Court granted rehearing and then GVR'd in fourteen cases (or more, if one counts each lower court judgment separately). (10) All of those cases involved federal criminal defendants whose petitions for certiorari were denied before the Court's major ruling in United States v. Booker, (11) which held that the federal Sentencing Guidelines were unconstitutional if applied in a mandatory fashion. After deciding Booker, the Court granted rehearing and GVR'd the fourteen cases, along with hundreds of cases in which petitions for certiorari were still pending when Booker came down. (12) Even more recently, in June 2010, the Court again reheard a denial of certiorari and GVR'd, this time in Melson v. Allen, (13) which concerned the statute of limitations for habeas corpus petitions. The Court's actions in Melson and in the Booker cases rescued the petitioners from finality and gave them a new lease on life (quite literally so in Melson's case, as he was challenging a death sentence).

   It may be too early to declare a trend, and yet, trend or not, these events provide an occasion for pondering the largely unpondered practice of rehearing. In its own unassuming way, the topic connects up with some broader themes, including the proper exercise of judicial discretion and the tradeoff between finality and other procedural values. As we will see, there are few if any strictly legal limits on the Supreme Court's power to grant rehearing, even when it comes to very tardy petitions for rehearing that reopen years-old cases. In that sense, finality is discretionary and "ultimately depends on the Court's self-restraint." (14) It ain't over till it's over, in other words.

   To briefly outline the organization of what follows: Part II explains why the moment of finality matters so much in our system and how the possibility of rehearing affects the cluster of values surrounding finality. Because the balance of considerations bearing on the propriety of allowing rehearing tips somewhat differently according to the circumstances, Part III then divides rehearings into three different categories and evaluates the soundness of the Court's practices in each category. An Appendix presents original data on cases in which the Court has granted rehearing in order to remand for consideration of a new legal development.

2. FINALITY AND REHEARING: THE STAKES, THE GOVERNING LAW, AND THE RELEVANT VALUES

   To appreciate the importance of the date when finality attaches, one has to understand how our system handles changes in law. Our focus here is court-generated changes in law, as that is the type of change for which the date of finality is most significant. (15) The usual rule today is that new rulings apply to all cases that are still pending, both civil and criminal. (16) This means that a decision by a lower court can retroactively become wrong and in need of correction, even if it was correct when rendered. (17) But we take a different approach once a case becomes final. At that point, the opportunities for revisiting it are much more limited. Our reluctance to upset final judgments is particularly pronounced in civil cases. (18) Although Rule 60 of the Federal Rules of Civil Procedure permits reopening of final judgments in certain circumstances, the mere incorrectness of a judgment in light of new legal developments is ordinarily not sufficient. (19) In criminal cases, there is at least in theory more opportunity for collateral attack on final judgments, such as through habeas corpus proceedings. Changes in substantive law (i.e., new rulings limiting the kinds of conduct that can be criminalized or the kinds of punishments that are permitted) can support relief in post-finality collateral proceedings. The much more common kind of change in law, however, is a new rule of criminal procedure, and that kind of rule typically does not apply retroactively to invalidate final judgments. (20) For example, in recent years the Supreme Court has decided several cases, most notably Crawford v. Washington, (21) forbidding use of certain out-of-court statements against criminal defendants. Defendants whose cases were still on direct appeal could benefit from the Crawford rules, but those whose direct appeals had concluded before Crawford could not. (22)

   In sum, the date of finality marks the dividing line between the category of litigants who can benefit from a favorable change in law and the category of those who, most likely, cannot. And, as noted, the attachment of finality occurs when the period for filing a petition for certiorari expires or the Supreme Court denies certiorari. Except, that is, when the Court decides to grant rehearing. (23) The grant of rehearing can, accordingly, move a litigant from one category to the other.

   We can illustrate the effect of rehearing by considering the fourteen cases in which the Court granted rehearing of a denial of certiorari and GVR'd in light of Booker. (24) These cases involved federal criminal defendants who raised constitutional challenges to judicial fact-finding at sentencing. Defendants had been raising these challenges for years to no avail, and these particular defendants' petitions for certiorari were denied in May and June 2004. Then, at the end of June 2004, the Supreme Court finally embraced their constitutional argument in Blakely v. Washington, (25) which concerned a...