John Roemer reports in today’s Daily Journal [subscription] about a change in the Supreme Court’s grant-and-hold policy in criminal cases, a change he attributes to the two newest justices, Mariano-Florentino Cuéllar and Leondra Kruger. Previously, instead of granting review and deferring action in cases raising criminal law issues that were already before the court in other matters, the court would deny review, forcing the defendant to file a separate habeas corpus petition to take advantage of any favorable decision in the pending case. Now, the court is using the grant-and-hold procedure, remanding the held case to the Court of Appeal when appropriate for reconsideration in light of the opinion in the lead case. At yesterday’s conference, for example, the court issued grant-and-hold orders in 10 criminal cases.
The article quotes the court’s chief supervising attorney Jake Dear as saying that “[s]ome changes [in court policy] are triggered by external inquiries about long employed procedures that may deserve to be rethought. When you have new justices and staff coming on to the court, you get even more questions about why things are done in a certain way. Sometimes, in giving an explanation, people realize there should be changes. When new people join the court, it can be a very productive and invigorating time.”
The new policy should make things easier for the parties and for the lower courts who would otherwise be dealing with separate habeas petitions, although it might add a bit to the Supreme Court’s workload because the court will need to evaluate the appropriate disposition for more grant-and-hold cases. It will also give the Supreme Court additional flexibility. The court occasionally un-holds a grant-and-hold case and asks for briefing in that case. However, there can be no further briefing in a case in which the petition for review has already been denied. By increasing the number of grant-and-holds, the court keeps more of its options open.