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 be mandatory
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 be required or that re-argument would
otherwise just follow naturally from a 4-4 split.
Since I know exactly
*nothing* about Supreme Court
procedure, I have no idea who's
right -
or even whether I'm just reading too much into what I've read on this
- but it seems to me that the
process on obtaining a re-argument has the potential to be a pretty important twist.
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
to make his own sua sponte request for 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
"Do Corporations Have a Constitutional Right to Run 'Genuine
Issue Ads' Before Elections Despite McCain-Feingold?"
UPDATE: Bob Bauer reports
from oral argument. It is quite an interesting report, leaving open the
possibility that this Court divides 4-4 not counting Justice O'Connor,
and the case is reargued for a new Justice Alito.
--
Rick Hasen
William H. Hannon Distinguished Professor of Law
Loyola Law School
919 Albany Street
Los Angeles, CA 90015-1211
(213)736-1466 - voice
(213)380-3769 - fax
rick.hasen@lls.edu
http://www.lls.edu/academics/faculty/hasen.html
http://electionlawblog.org
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