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 four other Justices have voted to grant certiorari, thus preserving the Court’s jurisdiction. The contours and the continuing viability of this norm are unclear, however.

In recent years, the Court has declined to halt executions when four Justices requested more time for consideration—before a vote on certiorari. In one instance, four Justices voted to call for the views of the Solicitor General, a step typically taken only in cases in which the Court is seriously considering granting certiorari. But as Justice Breyer noted in dissent: “[N]o Member of the majority … proved willing to provide a courtesy vote for a stay so that we can consider the Solicitor General’s view once received. As it is, the request will be mooted by petitioner’s execution.” More recently, in Dunn v. Price, after the state sought to vacate a lower court stay on the evening of the execution, four Justices requested that the application be held until the following morning when all the Justices could discuss the issue at their regularly scheduled conference; the Court refused and entered a brief order vacating the stay.

In such situations, a case that four Justices are seriously considering placing on the merits docket for full consideration can be denied a path forward by a decision disposing of the case through an emergency order. The proposal of a rule that four votes are sufficient to grant a stay of execution would resolve this concern. So would an extension of the “courtesy fifth” norm to include circumstances in which four Justices need more time to determine whether to vote to grant certiorari, an approach taken by Chief Justice Roberts in a capital case several years ago.

Arguing against such a proposal, a Commission witness urged that if the Court is to prevent the government from carrying out a death sentence as scheduled, it should only do so if a majority of the Justices endorse that action. A related concern is the one raised by then-Justice Rehnquist, who argued to his colleagues that “four Justices out of a total number of nine could frustrate the effectuation of the will of the majority” by banding together to issue a stay “in every death penalty case.” Other commentators are skeptical of this concern, however, asserting for instance that “there are many reasons—including collegiality, the likelihood of an adverse outcome on the merits, and the probability of negative public and congressional comment—why the minority would be unlikely to behave in this fashion.” A Commission witness observed, moreover, that the Court for many years had four Justices who were generally sympathetic to legal issues raised by capital defendants, but who did not use “their existing authority to disrupt the operation of the court” by granting certiorari in every capital case and pressing for a courtesy fifth.