Rehearings in the Supreme Court of the United States.

• Jurisdiction: United States

Section 148. Rehearings in the Supreme Court of the United States.—How to discourage the unmeritorious petition for rehearing that is filed as a matter of course, and yet to leave the door slightly ajar for that rare instance in which a rehearing should be granted, may well be an insoluble problem. Certainly the Supreme Court's short-lived effort to stem the tide by reducing from 25 to 15 days the time within which to petition for rehearing was unsuccessful;⁴⁰ it was accordingly abandoned in the 1954 Rules.⁴¹ There is really only one way to discourage unmeritorious applications for rehearing, and that is to deny them.

In the first five Terms since the 1954 Rules went into effect, about 970 petitions for rehearing were disposed of, and all but 15 were denied.⁴² Of the 15 granted, only two—Reid v. Covert⁴³ and Flora v. United States⁴⁴—followed opinions on the merits. It may be noted that, in the last 20 years, only five rehearings have been granted following decisions on the merits.⁴⁵

Included in the 15 grants for the quinquennium were six rehearings of affirmances by an equally divided court,⁴⁶ although it should be noted that rehearings have been denied even in that situation,⁴⁷ and that in the Sioux City Cemetery case⁴⁸ the grant of rehearing following such an affirmance resulted in dismissal of the petition for certiorari.

Of the other rehearings granted, four were rehearings of earlier denials of certiorari, granted because of intervening decisions;⁴⁹ one involved the modification of the judgment earlier entered⁵⁰ (in all likelihood by inadvertence, compare Section 37 (b), supra) ; while the remaining two were reconsiderations of earlier denials of certiorari, in each instance again denied when reconsidered.⁵¹

In sum, a slim haul; and yet that is par for the course. In the earlier edition of this work it was noted that, at the 1946 through 1948 Terms, the Supreme Court granted 17 petitions for rehearing out of some 600 filed. All except three involved cases considered either on petitions for certiorari or on jurisdictional statements. Of the other three, one turned on an intervening decision; a second was granted after affirmance by an equally divided court and was then reaffirmed after reargument, still by an equally divided court.⁵² In the third case, Graver Mfg. Co. v. Linde Co.,⁵³ rehearing was granted after opinion, but on rehearing the same result was reached.⁵⁴

In this connection, of the five rehearings granted after opinion in the last twenty...