As I noted yesterday, the Supreme Court relisted the petition for certiorari in King v. Halbig. Jon Adler has a detailed post bout whether the Court may ultimately grant cert. Chris Walker adds some insights here. and notes five possibilities of what the relist means: (1) there are four votes to grant, but in keeping with the usual policy, they relist it at least once; (2) one of the Justices asked for more time before the vote, presumably to flip a colleague; (3) there are four votes to grant, but a Justice asked as a courtesy to have more time to consider; (4) there were not four votes, and one justice wants time to draft a dissent from denial; (5) the Justices will hold the case until the D.C. Circuit en banc resolves Halbig.

As Chris notes, I think #5 is unlikely. If the Justices were going to hold, they would have done so right away. Instead, they distributed it for distribution. I’ve asked around, and I don’t know if it has ever happened that the Justices held a petition after it was relisted. But this is, as Chris writes, “a very remote possibility.” It wouldn’t be unprecedented.

I am also skeptical about #4, in light of the recent absence of dissentals in the same-sex marriage appeals. What is the point of dissenting from denial now, when Halbig will come up in the next few months. The most obvious rejoinder to a dissental, is that granting cert in the absence of a Circuit Split is premature. What would a dissental even say? There is a parallel here to the same-sex marriage appeals. In the absence of a circuit split, a dissental makes little sense–even if cert is viable.

So that leaves us with options #1, #2, #3, and of course the run-of-the-mill deny of cert. I don’t have any insights there, but I think we can at least rule out a dissental. This makes the odds of grant a tad bit higher.