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Thursday, November 14, 2019

Rehearing Petition in Gundy

Last Term, the Supreme Court decided United States v. Gundy. Or did it? 

The decision in Gundy was a plurality opinion by Justice Kagan, with a concurrence in the judgment by Justice Alito. Three Justices dissented and indicated that they would say that the statute in question was invalid on non-delegation grounds. Why were there only eight Justices? Because the case was argued before Justice Kavanaugh was confirmed.

In July, counsel for Gundy filed a petition for rehearing. The petition argued that the case should be reheard by the full Court in light of Justice Alito's concurrence, which suggested that he favored the dissenting position in principle but did not want to leave the Court equally divided. The petition for rehearing is still pending.

Something odd is going on. Petitions for rehearing are rarely granted by the Court nowadays, even though that wasn't always the case. The Court could have set Gundy for reargument after Justice Kavanaugh was confirmed. Instead, they went ahead and issued a decision. Why, then, are they hesitating about denying the rehearing petition? It is a waste of time to issue a set of opinions and then withdraw them and start all over again.

Could Justice Kavanaugh be complaining that he was denied the opportunity to participate in Gundy? Is Justice Alito having second thoughts about not joining the dissenters? We'll find out soon enough, I guess. 

Posted by Gerard Magliocca on November 14, 2019 at 08:50 PM | Permalink

Comments

One thing you can't rule out is a mere statement respecting the denial of rehearing. They're rare, but Scalia wrote one when rehearing was denied in Kennedy v. Louisiana (as did Kennedy, the author of Kennedy, explaining why rehearing was denied).

Posted by: Asher | Nov 14, 2019 11:46:59 PM

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