{{about, the legal term, the 2004 novel, The Rule of Four
The rule of four is a
US Supreme Court
The Supreme Court of the United States (SCOTUS) is the highest court in the federal judiciary of the United States. It has ultimate appellate jurisdiction over all U.S. federal court cases, and over state court cases that involve a point of ...
practice that permits four of the nine justices to grant a writ of certiorari. It has the specific purpose to prevent a majority of the Court's members from controlling their docket.
The rule of four is not required by the US Constitution, any law, or even the Court's own published rules. Rather, it is a custom that has been observed since the Court was given discretion on hearing appeals by the
Judiciary Act of 1891
The Judiciary Act of 1891 ({{USStat, 26, 826), also known as the Evarts Act after its primary sponsor, Senator William M. Evarts, created the United States courts of appeals and reassigned the jurisdiction of most routine appeals from the district ...
,
Judiciary Act of 1925
The Judiciary Act of 1925 (43 Stat. 936), also known as the Judge's Bill or Certiorari Act, was an act of the United States Congress that sought to reduce the workload of the Supreme Court of the United States.
Background
Although the Judiciary A ...
, and the Supreme Court Case Selections Act of 1988.
The "Rule of Four" has been explained by various Justices in judicial opinions throughout the years. For example, Justice
Felix Frankfurter
Felix Frankfurter (November 15, 1882 – February 22, 1965) was an Austrian-American jurist who served as an Associate Justice of the Supreme Court of the United States from 1939 until 1962, during which period he was a noted advocate of judic ...
described the rule as follows: "The 'rule of four' is not a command of Congress. It is a working rule devised by the Court as a practical mode of determining that a case is deserving of review, the theory being that if four Justices find that a legal question of general importance is raised, that is ample proof that the question has such importance. This is a fair enough rule of thumb on the assumption that four Justices find such importance on an individualized screening of the cases sought to be reviewed."
The Rule of Four in general has remained constant for some time in which it takes at least four affirmative votes to grant a petition for certiorari, but the ancillary aspects of it have changed throughout the years, and Justices have not always agreed about these aspects.
A good example is found in dueling opinions (for themselves alone, not opinions of the Court), in ''Rogers v. Missouri Pac. R. Co.,'' Justice Frankfurter and Justice
John Marshall Harlan II
John Marshall Harlan (May 20, 1899 – December 29, 1971) was an American lawyer and jurist who served as an associate justice of the U.S. Supreme Court from 1955 to 1971. Harlan is usually called John Marshall Harlan II to distinguish him ...
discussed their understandings of the conventions surrounding the Rule of Four. In particular, the Justices disagreed as to whether once certiorari has been properly granted by the vote of four Justices, all Justices were then to rule on the merits of the petition, rather than to vote to dismiss it. Justice Frankfurter did not agree that Justices were required to reach the merits of a petition, even if it was properly granted, but Justice Harlan disagreed and felt that even if he disagreed with a grant of certiorari, the Rule of Four "requires that once certiorari has been granted a case should be disposed of on the premise that it is properly heard, in the absence of considerations appearing which were not manifest or fully apprehended at the time certiorari was granted."Id. at 559 (Harlan, J., concurring in part and dissenting in part).