Deciding What to Decide: The Docket and the Rule of Four
JOHN PAUL STEVENS Justice, Supreme Court of the United States
Whenever four justices of the United States Supreme Court vote to grant a petition for a writ of certiorari, the petition is granted even though a majority of the Court votes to deny. Although the origins of this so-called Rule of Four are somewhat obscure, it was first publicly described by the justices who testified in support of the judges' bill that became the Judiciary Act of 1925. 1 That Act enabled the Supreme Court to cope with the "utterly impossible" task of deciding the merits of every case on its crowded docket. 2 The Act alleviated the Court's problem by giving it the power to refuse to hear most of the cases on its docket. 3 Since 1925, most of the cases brought to the Supreme Court have been by way of a petition for a writ of certiorari--a petition which requests the Court to exercise its discretion to hear the case on the merits--rather than by a writ of error or an appeal requiring the Court to decide the merits.
In their testimony in support of the judges' bill, members of the Court explained that they had exercised discretionary jurisdiction in a limited number of federal cases since 1891 when the Circuit Courts of Appeals were created, 4 and also in a limited number of cases arising in the state courts since 1914. 5 They described in some detail the procedures they had followed in processing their discretionary docket, and made it clear that they intended to continue to follow those practices in managing the enlarged certiorari jurisdiction that would be created by the enactment of the judges' bill.
Several features of the Court's practice were emphasized in order to demonstrate that the discretionary docket was being processed in a responsible, nonarbitrary way. 6 These four are particularly worthy of note: (1) Copies of the printed record, as well as the briefs, were distributed to every justice; 7 (2) every justice personally examined the papers and prepared a memorandum or note indicating his view of what should be done; 8 (3) each