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New StatPack, Plus More on Monday’s Orders

A new edition of this Term’s StatPack is here.  Note that we have not included a case list in this download, but the SCOTUSwiki case indices have been updated to reflect the latest opinions and grants; OT07 is here, and OT08 is here.

One additional item of curiosity this week: on Monday, the Court granted cert. in Pearson v. Callahan, which included the following directive: “In addition to the questions presented by the petition, the parties are directed to brief and argue the following question: ‘Whether the Court’s decision in Saucier v. Katz, 533 U. S. 194 (2001) should be overruled?'”  One reader emailed us to ask an interesting question: when was the last time the Court sua sponte (i.e. on its own) ordered the parties to address specifically whether it should overrule one of its precedents?

Based on our searches of various databases, the last time this happened (and the only time in recent history) was 1991 in a case called Payne v. Tennessee.  In an order reported at 498 U.S. 1080, the Court amended its grant of a few days earlier to add a question about overruling two of its then-recent capital case precedents, Booth v. Maryland and South Carolina v. Gathers.  In its ultimate opinion, the Court did indeed overrule those two 5-4 decisions by a vote of 6-3, leading Justice Marshall to write a dissent noting that “Neither the law nor the facts supporting Booth and Gathers underwent any change in the last four years. Only the personnel of this Court did.”

The Court also added questions on its own about overruling precedents in both Patterson v. McLean Credit Union from 1988 and Garcia v. San Antonia Metropolitan Transit Authority from 1985.  In those cases, though, it granted cert., held oral argument, and then asked the parties to reargue the cases addressing whether parts of earlier decisions should be overruled.  Ultimately, Patterson did not overrule the precedent at issue, Runyon v. McCrary (1976), but Garcia did indeed overrule the National League of Cities v. Usery (1976) decision.

Procedurally, even those most in the know about the Court’s procedure are somewhat unclear about the formal process for adding such a question sua sponte.  The order requesting reargument and rebriefing in Patterson led to two dissents from the Court’s more liberal wing – one written by Justice Blackmun, joined by justices Brennan, Marshall, and Stevens, and the other written by Justice Stevens, also joined by Justices Brennan, Marshall, and Blackmun – so that action likely was formally voted on, and likely took five votes.  But when the Court adds a question before argument, as it did on Monday, it’s not clear whether it takes four votes, five votes, or whether it’s done more informally at the request of one or more justices and then mutually agreed upon.