Petitions for rehearing; additional reasons for denial.

• Jurisdiction: United States

Section 144. Petitions for rehearing; additional reasons for denial.—In part, of course, the low batting average of petitions for rehearings illustrates a very human trait. Most persons do not like to change their minds once they have made them up—and most judges share that well-nigh universal reaction. There is extant a letter from Mr. Justice Holmes that says, "I guess * * * that the defeated side will apply for a rehearing hinting that we don't understand the patents and that the application will be denied in the belief that we damned well do."⁶ Rarely has a prediction been more fully—or more quickly—fulfilled.⁷

It is only on the rarest occasions that a judge can be induced to view the same case differently once he is publicly committed to a particular course of reasoning on the issues that case involves. Confessing error afterwards does not involve the same degree of painful anguish; witness the announcement of three justices that they had changed their views on the flag salute issue,⁸ and the comment of another that he would vote differently than he once had on the scope of the Fourth Amendment.⁹ Where the earlier view had been expressed in a different capacity, backtracking is of course easier; here the classic instance is the graceful admission by Mr. Justice Jackson that an opinion he had signed as Attorney General on the same issue was, on reflection, completely wrong.¹⁰

Where, following the first argument, no opinion has been delivered, no one is publicly on record, and many votes...