How the rule of four shapes the Supreme Court's docket
The Supreme Court will soon begin its new term, and attention turns to which cases it will accept for review. A longstanding custom called the rule of four lets four justices grant certiorari even if a majority would prefer to deny it. The article traces the practice's origins to 1925 legislation and notes that it is neither constitutional nor codified in the Court's rules.
The practice dates to negotiations over 1925 legislation, which made certiorari the main route to the Supreme Court and gave justices broad discretion to reject appeals. Chief Justice William Howard Taft assured Congress that four votes would suffice to hear a case.
The rule appears in neither the Constitution nor federal statutes, and it is absent from the Court’s published rules. Justice John Paul Stevens criticized it in 1983, arguing that five opposed justices should not have to decide a case; his objection produced no change.
The rule could affect litigants whose appeals attract four justices but not five for emergency relief, potentially allowing lower-court rulings or executions to proceed while review continues. It may also shape public perceptions of access to the Court, since a small minority can force consideration of cases that most justices would decline. Its practical impact remains limited, however, because thousands of petitions still fail each term.