The plaintiffs in Friedrichs have filed a petition for rehearing, in light of the Court’s recent 4-4 split. In their argument, Mike Carvin and his colleagues stress that the Court should grant rehearing in expectation that a tie-breaking Justice will be confirmed. As a precedent, they cite practice following the retirement of Justice McReynolds in 1941.
The Court is familiar with the record in this case, has already determined that it is an appropriate vehicle for deciding the Questions Presented, has already expended significant resources digesting the briefs and presiding over argument, and is presumably prepared to issue a decision once a tie-breaking Justice is confirmed, hears re-argument, and settles upon his or her view. Respondents prevailed below and there has been no stay, such that nothing is lost and much is gained by rehearing this case once a new Justice is seated. This Court should do so.4
4 Typically, the Court will grant rehearing in expectation of a new Justice being seated, rather than awaiting confirmation. For example, after Justice McReynolds retired on January 31, 1941, the Court affirmed several cases by an equally divided Court. The Court then granted rehearing petitions in all of these cases on April 28, 1941—before Justice Byrnes was confirmed to fill the vacancy. Kepner, 313 U.S. 597; Frank, 313 U.S. 596; Commercial Molasses, 313 U.S. 596; Toucey, 313 U.S. 596; Gray, 313 U.S. 596.
Who that Justice will be, is a very different question.