REHEARING

A party who is dissatisfied with the court's decision or opinion in a case may request the court to reconsider. The term "rehearing" refers to such a reconsideration, usually by an appellate court.

By statute, the Supreme Court's appellate jurisdiction over cases coming from the state courts is limited to questions of federal law that have been properly drawn in question in the lower courts. This requirement normally is not satisfied by a litigant who raises a federal question for the first time in a petition for rehearing after a state supreme court has decided the case. However, if the state court entertains the petition and actually considers the federal question, the question can be brought to the Supreme Court.

The Supreme Court itself receives between 100 and 200 petitions for rehearing each year, seeking reconsideration of its own decisions or opinions. Fewer than one percent of these petitions are granted. By rule, the Court has provided that a petition for rehearing will be granted only by the vote of a majority of the Justices, including at least one Justice who concurred in the decision. By custom, a Justice who did not participate in that decision does not vote on the petition for rehearing.

One occasion for granting a petition for rehearing is the case in which the Supreme Court has affirmed the lower court's decision by a 4–4 vote. If the missing Justice was ill and has recovered, or if a ninth Justice has been appointed to fill a vacancy, it may seem likely that a majority will be mustered once the Court returns to full strength. Absent such a circumstance, the typical petition for rehearing achieves little but delay and the chance for a parting shot.

Kenneth L. Karst
(1986)

Bibliography

Stern, Robert L. and Gressman, Eugene 1978 Supreme Court Practice, 5th ed. Chap. 15. Washington, D.C.: Bureau of National Affairs.