freepersup said:
CDR Kerchner (a past eligibility plaintiff) posited that if 2 Justices do recuse themselves, 9 becomes 7, and the rule of four becomes the rule of three. Is this so?
28 U.S.C. Section 1 requires 6 justices for a quorum. In order for a case to be heard, the majority decision to accept it would still be 4. That is why it matters not if there are 6 justices or 9 justices reviewing a case. The guidelines to grant the case are the same. In some cases, the "rule of 5" is used to grant all justices the ability to accept a case. However, the practice of the "rule of 4" began in 1891 to prevent a majority of justices from controlling the docket.
If there are less than 6 justices, the Supreme Court clerk must announce the court is not in a quorum and therefore decisions must be delayed.
More information can be found here:
http://www.supremecourt.gov/ctrules/2010RulesoftheCourt.pdf
Kerchner is incorrect in his assumption. However, the Supreme Court can do what it likes. If it wants to allow the "rule of 3", it may do do at its discretion.
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the practice of the "rule of 4" began in 1891 to prevent a majority of justices from controlling the docket. ...the Supreme Court can do what it likes. If it wants to allow the "rule of 3", it may do do at its discretion.
True.
To elaborate on the intent of the rule of 4...as you stated, it was put in place "to prevent a majority of justices from controlling the docket."
In other words, it exists to give a "minority" view on the court some "weight."
With that in mind...IF Kagan and Sotomayor recused themselves...that would leave 7 justices. If they left the rule of 4 in tact, that means the original intention of the rule would become moot as then the 4 (or a majority in that case) would be "controlling" the docket.
In order for the intent of the informal "rule of 4" to be maintained...then it's possible that only 3 justices would be needed to grant cert.
To maintain the reason for the rule in the first place...it would make sense for them to allow 3 to be consistent.