In light of Justice Scalia’s death, CIR has announced we intend to ensure that a full panel of the Supreme Court can hear and issue an authoritative decision in Friedrichs v. CTA. The Supreme Court will often hold cases over in light of a Justice’s absence, or one of the parties may request that the court rehear the case.
It is not always clear why the Court holds some cases over for reargument and not others, but a cursory look at the Court’s history is revealing.
The Court often holds cases over when they involve a matter of fundamental right. For instance, Brown v. Board of Education was argued before the Court in 1952. The case was nowhere near being a tie vote. In fact, the case was ultimately decided unanimously, but when Justice Vinson died the Court held the case over, recognizing that issues of fundamental right deserve a hearing by the full court. A decision in Brown v. Board of Education was not issued until 1954.
A similar event occurred after the Court heard Roe v. Wade. The case was originally argued before the Court in 1971, but after Justice Black resigned and Justice Harlan died, the case was held over. Like Brown v. Board of Education, the case was never in danger of resulting in a tie, but the Court recognized that an issue concerning fundamental rights that had so gripped the nation deserved a hearing by a full panel of Justices. The case was not decided until 1973.
This has been the procedure the Court has followed with many other cases involving fundamental rights, including Bolling v. Sharpe and Garcetti v. Ceballos. The Court does this likely because it knows the nation deserves it’s full weight of authority when speaking to such controversial matters of right that need to be resolved.
We believe the free speech concerns in Friedrichs v. CTA also deserve a hearing from a full panel of Justices who are capable of issuing an authoritative decision.