I'm not sure why the form of jurisdiction -- cert or appeal -- should matter for these purposes.  Once the Court grants cert., the case is in front of it.  A 4-4 affirmance makes no law, not because the case is there on cert. (after all, the Court doesn't dismiss the writ), but because there's no majority (unlike a summary affirmance at the JS stage in a direct appeal, in which at least six justices must ordinarily vote to affirm).  Or that's what @ would have thought.

-----Original Message-----

From:  Rick Hasen <Rick.Hasen@lls.edu>
Subj:  Re: WRTL oral argument
Date:  Tue Jan 17, 2006 5:19 pm
Size:  4K
To:  Joseph Birkenstock <JMB@capdale.com>
cc:  election-law <election-law@majordomo.lls.edu>

      This doesn't directly respond to Joe's question, for which I don't know the answer. But I have heard the suggestion that the Court could act after Justice O'Connor leaves by sticking with the 4-4 vote and not scheduling reargument. A 4-4 split on appeal (as opposed to cert) would affirm the judgment below by an equally divided Court, with the effect that the result (but not necessarily the reasoning) of the lower court stands.
 
 
 Joseph Birkenstock wrote:  Message
   Procedural question: in discussing WRtL this morning I've been told that if the Court winds up 4-4 on either issue, re-argument would not bemandatory but instead would only be available on a motion - either from one of the parties or sua sponte - that would require 5 votes to grant.In many other descriptions of the case that mention re-argument, however, the prospect of re-argument is phrased more automatically - either that a re-argument would berequired or that re-argument would otherwise just follow naturally from a 4-4 split. 
 
 Since I know exactly *nothing* about Supreme Court procedure, Ihave no idea who's right- or even whether I'm just reading too much intowhat I've read on this -but it seems to methat the processon obtaining a re-argument has the potential to be apretty importanttwist. 
 
 So,is a motion required for re-argument (and are five votes required to grant such a motion)? And if so, how does this play out in practice? If Alito, for example,upon getting sworn in were tomakehis ownsua sponte requestfor re-argument, would what's left of the McConnell majority be able to vote against granting that motion or as a matter of comity and institutional cooperation, would the McConnell justices be expected to go along with such a request? Anyone know of any precedents for this situation?
 
  ________________________________ 
 Joseph M. Birkenstock, Esq. 
 Caplin & Drysdale, Chartered 
 One Thomas Circle, NW 
 Washington, DC 20005 
 (202) 862-7836 
 *also admitted to practice in CA