When Is Finality . . . Final? Rehearing and Resurrection in the Supreme Court

I. INTRODUCTION It ain't over till it's over. And yet the question remains: When, exactly, is it over? Perhaps the safest answer, when it comes to litigation, is that it is never over, at least if we mean absolutely and irretrievably over. (1) Nonetheless, while recognizing that absolute repose might not be found in this world, we often say that a case is over once the judgment becomes "final." Now, finality is a word of many meanings, so one has to be careful in using it. (2) The particular type of finality that concerns us here is the finality that attaches when the direct appellate process has run its course. This type of finality is important because it marks the point at which a case outcome is no longer routinely subject to revision based on changes in the governing law. A case that is still on appeal is not yet final in this sense, and so an appellate court can reverse a trial court decision that was perfectly correct when rendered but that has become incorrect by the time of the appeal. (3) After finality attaches, however, the judgment stands even if the law later changes. To be sure, this is not an absolute and iron-clad rule; few things in the law (or in life) are. But, at the very least, the attachment of finality at the end of the appellate process marks a key turning point. Because finality has important consequences, the precise moment that a case becomes final can matter a great deal. As just stated, finality attaches when the direct appeal concludes. But that is still inexact. To express it more precisely, a case becomes final, for federal-law purposes, when the date for petitioning for certiorari expires or, if a petition is filed, when the Supreme Court denies it. (4) The denial of certiorari is therefore a decisive event, inasmuch as it marks the boundary between the still-pending and the now-final, the live and the dead. Given that it is simply the day certiorari was denied (or the day the period for seeking certiorari expired), identifying the moment of finality is ordinarily very easy and, seemingly, not the sort of thing that would reward much study. But that initial impression would be wrong, for there are some interesting issues that lurk just below the surface. First, note that the Supreme Court's case-handling practices introduce some discretion into the date of finality. When the Court has granted certiorari to rule on a particular question, the Court could just deny any other petitions for certiorari that raise the same or similar issues. That would render those cases final and presumptively not eligible for the application of the rule the Court is poised to announce. But the Court's usual practice is not to deny all similar petitions but instead to hold them on its docket until the plenary decision comes down. Once the decision is announced, the Court will then summarily vacate the potentially affected cases and remand them so that the lower courts can apply the new law and make any appropriate modifications. To those conversant in the details of the Court's practices, this is called a GVR (for grant, vacate, and remand). (5) In this way, the Court controls whether cases live or die by controlling the date on which it rules on the petition for certiorari. Cases do not progress to finality as if on an unstoppable conveyor belt. Just as impersonal chance and dumb luck play a role in a particular case's track toward finality, so does judicial choice. A second interesting feature of finality in the Supreme Court--and another point of entry for judicial discretion--is that a denial of certiorari might itself turn out not to be truly final. That is because the Court's rules allow a disappointed litigant to file a petition for rehearing of the denial of certiorari. (6) Many litigants file petitions for rehearing, and it is usually a futile gesture. (7) But it sometimes bears fruit. Perhaps the most notable recent grant of rehearing was the Court's decision, in June 2007, to grant certiorari on rehearing in two Guantanamo detainee cases after the Court had denied certiorari a few months before. …