For the first time in almost 40 years, the Supreme Court has vacated its own denial of cert in a case, and has agreed to hear a series of appeals by Guantanamo Bay detainees challenging their detention. Lyle Denniston explains the unusual posture of this grant:
Under the Court's Rules and precedents, it would have taken the votes of five Justices to grant rehearing, compared with the requirement of four votes to initially grant an appeal. When the Court denied review in April, only three Justices voted to hear the cases. But two of the other six, Justices John Paul Stevens and Anthony M. Kennedy, indicated they wanted the detainees to first attempt to get legal relief in the D.C. Circuit. Under the Detainee Treatment Act of 2005, the Circuit Court has the authority to provide limited review of military decisions to continue holding Guantanamo prisoners as "enemy combatants."
Friday's order was an indication that those two Justices had decided that the Court needed to change its approach, and so provided the votes needed to grant rehearing. Under the Court's rules, a rehearing is granted only if there has been a change in "intervening circumstances of a substantial or controlling effect" or if counsel can cite "substantial grounds not previously presented."
If Denniston is correct, than the five Justices who agreed to hear this case are also the same five Justices who voted against the Bush Administration in Hamdan v. Rumsfeld.