US Supreme Court: Rule of Four Custom Guides Case Selection

• The US Supreme Court rule of four custom dictates that four justices must vote to hear a case, even if a majority does not wish to.
• This 100-year-old custom is central to the Supreme Court case selection process and how cases are added to the US Supreme Court docketing.
• Historically, the Court moved from mandatory direct appeals in the 19th century to discretionary review via petition for certiorari, formalized by 1925 legislation.
• The petition for certiorari, meaning "to be more fully informed," is the formal request for the Supreme Court to review a lower court's decision.
• Lawyers advising on potential Supreme Court appeals must understand this custom to assess viability and manage client expectations regarding the Court's discretionary review.

Understanding the 'rule of four' is critical for lawyers assessing the viability of a petition for certiorari and managing client expectations regarding the Supreme Court's discretionary review.

As the Supreme Court prepares to convene for its 2026-27 term on October 5, a primary focus for the justices will be the selection of new cases destined for oral argument and ultimate decision. Central to this crucial aspect of the Court's operations is a long-standing procedural guideline known as the US Supreme Court rule of four custom, which dictates how cases are added to the docket.

This custom, which has been in practice for a century, stipulates that the Court will grant review to a case if at least four justices vote in favor of hearing it. This threshold applies even if a majority of the nine-member Court might prefer not to take up the matter, effectively allowing a minority to compel consideration of a case.

When a party that has lost in a lower court seeks review from the Supreme Court, the formal request is made through a SCOTUS petition for certiorari. This Latin term translates to "to be more fully informed," reflecting the Court's discretionary power to request records from lower tribunals to gain a comprehensive understanding of a case.

The method by which the Supreme Court hears cases has undergone significant transformation over time. Throughout most of the 19th century, the pathway to the nation's highest court was predominantly via direct appeal, meaning justices were largely obligated to adjudicate the majority of cases brought before them.

A pivotal shift occurred in 1891 when Congress established federal circuit courts of appeal across the country. This legislative action was partly designed to alleviate the Supreme Court's burgeoning caseload. Concurrently, Congress granted the Supreme Court initial discretion to decline certain categories of appeals originating from these newly formed circuit courts.

Further expanding the Court's autonomy, Congress enacted additional legislation in 1925. This law solidified the petition for certiorari as the primary mechanism for appealing to the Supreme Court, simultaneously endowing the justices with extensive discretion to reject cases simply by denying review. During the negotiations surrounding this 1925 legislation, justices informed Congress about the general practice they followed for case selection, which implicitly referred to the four-justice threshold.

The US Supreme Court rule of four custom remains a foundational element of the Supreme Court case selection process, profoundly influencing US Supreme Court docketing. This procedural custom underscores the unique power dynamics within the Court, where a minority can initiate the review of significant legal questions.

Understanding this custom is critically important for legal professionals. Lawyers advising clients on potential appeals to the nation's highest court, particularly concerning a SCOTUS petition for certiorari, must possess a deep comprehension of how this rule operates.

This knowledge is vital for accurately assessing the viability of an appeal and effectively managing client expectations regarding the Court's highly discretionary review. The 'rule of four' ensures that even cases lacking majority support for review can still reach the Court's consideration, shaping its agenda and the trajectory of American jurisprudence.

Lawyers advising on potential US Supreme Court appeals must understand the 'rule of four' as a foundational custom dictating case selection, which is critical for assessing the viability of a petition for certiorari and managing client expectations regarding the court's discretionary review.

Source: Original reporting via SCOTUSblog