The Department of Justice (DOJ) is taking action in response to the disheartening one-liner 4-4 tie decision reached by the Supreme Court in June. On July 18, 2016, the DOJ filed a petition for rehearing of the case in hopes of getting a chance to sway a ninth justice in its favor. The DOJ concedes that petitions for rehearing are seldom granted, yet puts forth some strong arguments as to why this case should be the exception.
While rare, rehearing’s that are granted are often the result of an equally divided court. The petition points to United States v. One 1936 Model Ford V-8 De 3 Luxe Coach, 305 U.S. 666 (1938), wherein the case was reargued after a vacancy due to death was filled by Justice Frankfurter. This was also the situation in subsequent vacancies on the Court caused by retirement. And if the Court intends to use the angle that it cannot hold onto the case with the approaching summer recess, DOJ thought of that too. In one case, Home Ins. Co. v. New York, 122 U.S. 636 (1887), DOJ points out several years passed between the grant of rehearing and the actual reargument!
Regardless of what the final outcome may be, our nation deserves precedent in such a hotly debated area of law. When looking to the Supreme Court for a decision, is it not because a final arbiter is needed? Furthermore, this would have been a non-issue if there was a ninth justice to sit on the court… perhaps Merrick…
To read the DOJ’s petition, click here.