December 21, 2011

Insights from Justice Moreno’s former staff attorney on petition for review vote counts

Over lunch at La Fogata (one of our favorite local Mexican restaurants), we were recently musing about why the Supreme Court rarely denies review by a 4-3 vote, and why most grants of review are unanimous. This article (Daily Journal subscription required), by Steven Levine—a former staff attorney for Justice Moreno—suggests answers to both questions. On the first, the reason seems to be collegiality. Mr. Levine notes that although “[f]our justices must agree in order for a case to be accepted for review . . . where three justices vote for a case to be accepted, often a fourth justice will join the three.” Regarding the second question, Mr. Levine notes that “[a]fter a case is accepted, the chief justice assigns it to one of the justices who voted to grant review.” (Emphasis added.) Preserving eligibility to be assigned as the authoring justice may explain, at least in part, why most grants of review are unanimous. (Related post: “Why are orders granting review almost always unanimous?”)

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