"Join Three"

Is a vote cast by a justice that signals a willingness to grant a petition for certiorari when three justices have already voted to do so, but that is otherwise regarded as a vote to deny certiorari. Following the Supreme Court's “Rule of Four,” the Court exercises its discretionary jurisdiction when four justices favor hearing an appeal. Even when fewer than four justices initially have cast firm votes to hear a case, however, certiorari may be granted, either because some justices were persuaded and changed their votes, or because one or more justices had cast “join three” votes. Some justices rarely or never cast join three votes, while others have cast them routinely.

The exact origins of join‐three votes are unknown, but the practice emerged clearly and regularly during the Burger Court. Join three votes have had multiple uses. Many join‐three votes clearly have been cast simply as ambiguous votes by justices wavering on the case. In other cases such votes appear to support the collegial goal of accommodating a vocal minority, particularly anticipating that some justices may threaten to publish a dissent from a denial of certiorari. Yet, a fourth vote is not automatically given; many appeals to the Court are denied with three votes favoring a grant of certiorari. During the 1980s approximately 12 percent of the cases that reached the Court's plenary docket and were given oral arguments received less than four outright votes to grant and one or more join‐three votes. Join‐three votes lowered the Rule of Four barrier and likely contributed to the large plenary docket of the 1970s and 1980s. As a number of justices with a proclivity to cast join‐three votes retired, and for many other reasons, caseloads were greatly reduced under Chief Justice William Rehnquist.

Bibliography

• David M. O'Brien, Join‐3 Votes, the Rule of Four, the Cert. Pool, and the Supreme Court's Shrinking Plenary Docket, Journal of Law and Politics 13 (1997): 779–808

— Patrick D. Schmidt