The rarity of Supreme Court do-overs

The United States Supreme Court rarely grants "do-overs," a term encompassing motions for rehearing or the reconsideration of settled legal issues. This article explores the stringent procedural and substantive hurdles that confront parties seeking to revisit a Supreme Court decision, highlighting the Court's commitment to finality and the doctrine of *stare decisis*. It delves into Supreme Court Rule 44, which governs petitions for rehearing, and illustrates their exceptional nature. The discussion is contextualized by the recent landmark decision in *Trump v. Barbara*, where the Court reaffirmed birthright citizenship under the Fourteenth Amendment, a ruling that the losing party has publicly stated an intention to seek a rehearing on, underscoring the formidable challenge such an endeavor represents.

In the intricate landscape of American jurisprudence, the finality of a Supreme Court decision stands as a bedrock principle. Unlike lower courts, where various avenues for reconsideration or subsequent appeals might exist, the U.S. Supreme Court is truly the court of last resort. The notion of a "do-over" at this highest judicial level is exceedingly rare, governed by strict rules and a deep-seated respect for precedent. This rarity underscores the immense pressure on litigants to present their strongest arguments at every stage, as the opportunity for a second bite at the apple is virtually non-existent.

This article examines the procedural and doctrinal barriers that make Supreme Court rehearings or substantive reconsiderations of its judgments an extraordinary event. It will explore the specific rules governing such requests and the judicial philosophy that underpins the Court's reluctance to revisit its own pronouncements. The recent high-profile case of *Trump v. Barbara*, concerning birthright citizenship, provides a timely illustration of a fundamental constitutional issue that has been definitively resolved by the Court, despite public calls for a rehearing, highlighting the formidable challenge inherent in seeking to overturn such a decision.

The principle of finality in litigation is a cornerstone of the American legal system, ensuring stability, predictability, and respect for judicial pronouncements. At the apex of this system, the U.S. Supreme Court's decisions carry immense weight, shaping national law and policy. This finality is reinforced by the doctrine of *stare decisis*, which mandates that courts adhere to precedent and not disturb settled legal principles. While *stare decisis* is not an inflexible rule, the Supreme Court has historically demonstrated a profound reluctance to overturn its own prior decisions, doing so in fewer than 1% of all rulings since its founding in 1789.

Procedurally, requests for a "do-over" at the Supreme Court are primarily governed by Supreme Court Rule 44, which outlines the requirements for petitions for rehearing. This rule specifies that a petition for rehearing of a judgment or decision on the merits must be filed within 25 days after entry of the judgment, unless the Court or a Justice extends or shortens the time. Crucially, Rule 44.1 states that such a petition "will not be granted except by a majority of the Court, at the instance of a Justice who concurred in the judgment or decision." This high bar reflects the Court's institutional commitment to the finality of its judgments and the extraordinary nature of revisiting a fully adjudicated case. The rule for rehearings of an order denying a petition for a writ of certiorari is similarly strict, limiting grounds to "intervening circumstances of a substantial or controlling effect or to other substantial grounds not previously presented."

The concept of birthright citizenship, recently affirmed by the Court, is rooted in the Fourteenth Amendment to the U.S. Constitution, specifically Section 1, which states: "All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside." This clause was adopted in the aftermath of the Civil War, largely to repudiate the *Dred Scott v. Sandford*, 60 U.S. 393 (1857), decision, which had denied citizenship to African Americans. The Supreme Court definitively interpreted this clause in *United States v. Wong Kim Ark*, 169 U.S. 649 (1898), holding that a child born in the United States to non-citizen parents domiciled there is a U.S. citizen.

The Supreme Court's procedural rules and historical practice demonstrate an overwhelming disinclination to grant rehearings on the merits. Legal scholars and practitioners widely acknowledge that petitions for rehearing of merits decisions are a "virtual dead-letter" and "extremely rare." Indeed, the Court has not agreed to any rehearing of a ruling in an argued case since 1965, and has only once in its history reversed a merits decision on rehearing, which occurred in 1956. This stark reality underscores that a mere disagreement with the Court's outcome, no matter how fervent, is insufficient grounds for reconsideration.

The stringent requirements of Rule 44.1, particularly the need for a concurring Justice to initiate the reconsideration, create a formidable internal barrier. This mechanism ensures that rehearings are not simply granted to accommodate a losing party's dissatisfaction but are reserved for truly exceptional circumstances, such as a manifest error of law or fact that was overlooked, or an intervening change in controlling law that fundamentally alters the legal landscape. The absence of oral argument for rehearing petitions further limits the opportunity for advocates to persuade the Court to revisit its decision.

The finality principle is further buttressed by the doctrine of *stare decisis*, which, while not absolute, demands compelling reasons for overturning established precedent. The Court's commitment to *stare decisis* provides stability and predictability in the law, essential for the functioning of government and society. While the Court has, on rare occasions, overturned its own precedents, such instances typically involve fundamental shifts in constitutional understanding or societal values, rather than a simple re-litigation of a decided issue.

This context is particularly relevant to the recent decision in *Trump v. Barbara*, where the Supreme Court, in a 6-3 ruling, upheld birthright citizenship by striking down an executive order that sought to limit it. Cecillia Wang, National Legal Director of the American Civil Liberties Union (ACLU), successfully argued the case, defending the long-standing interpretation of the Fourteenth Amendment's Citizenship Clause. The Court's decision reaffirmed the precedent set in *United States v. Wong Kim Ark*, which has stood for over a century. Despite the losing party's public statements about seeking a rehearing, the legal and practical hurdles to such an endeavor are immense. The Court's clear majority and the reaffirmation of deeply entrenched constitutional principles make a successful rehearing petition in *Trump v. Barbara* highly improbable, reinforcing the rarity of such "do-overs" at the highest court.

The rarity of "do-overs" at the U.S. Supreme Court serves as a critical reminder to legal practitioners of the profound finality that attaches to the Court's judgments. The stringent requirements of Supreme Court Rule 44 for petitions for rehearing, coupled with the deeply ingrained doctrine of *stare decisis*, mean that successful attempts to revisit a merits decision are virtually unprecedented. Attorneys must therefore approach every stage of litigation, particularly at the appellate level, with the understanding that the Supreme Court is indeed the court of last resort, where opportunities for a second chance are almost non-existent.

For practitioners, this emphasizes the paramount importance of meticulous preparation, comprehensive briefing, and compelling oral advocacy at every level of the federal judiciary. The recent affirmation of birthright citizenship in *Trump v. Barbara* exemplifies how the Court, even in highly contentious areas, adheres to established constitutional interpretations and precedents. While political or public dissatisfaction may lead to calls for reconsideration, the institutional mechanisms and judicial philosophy of the Supreme Court are designed to ensure that its decisions, once rendered, provide definitive answers, thereby upholding the stability and integrity of the rule of law. What to watch for, therefore, is not a direct "do-over" of such a decision, but rather any future legal challenges that might attempt to approach the issue from novel angles, though these too would face the formidable weight of settled precedent.